Delhi District Court
Salman vs State (Govt. Of Nct Of Delhi) on 5 April, 2021
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL
SESSIONS JUDGE-02(NE), KARKARDOOMA COURTS, DELHI.
CNR No. DLNE01-004808-2019
CA No. 98/19
Salman
S/o Sh. Sajid
R/o Ajay Madan ke showroom ke piche,
Abkari Road, Mohalla Kestiwara,
Deoband, Distt. Saharanpur, UP
(Presently confined in Central Jail no. 13
Mandoli, Delhi)
....Appellant
Versus
State (Govt. of NCT of Delhi)
....Respondent
Date of assignment : 20.12.2019 Date of Arguments : 27.02.2021 Date of Pronouncement : 05.04.2021 Judgment :
1. Vide this judgment I shall dispose off this appeal u/s 374 (3) r/w Section 383 Cr.PC against the impugned judgment of conviction dated 25.09.2019 and sentence order dated 23.11.2019 passed by Ld. ACMM, North East, Karkardooma Courts thereby convicting the accused u/s 394/34 of IPC and for punishment of four years (RI) along-with fine of Rs. 5,000/-, in default, 1 month S.I. CA No. 98/19 Salman Vs. State 1/23
2. Ld. Counsel for appellant has submitted that the judgment passed by Ld. Trial Court is not sustainable as prosecution has failed to prove the involvement of accused in the alleged incident of robbery in which complainant was allegedly robbed of his articles, but Ld. Trial Court has ignored all the material contradictions in the testimonies of PWs and has convicted the accused for the alleged offence. It is further argued that the incident allegedly occurred on 21.03.2018, whereas alleged recovery of robbed articles was effected on 28.03.2018 and that too from a public place which was accessible to public at large. It is further argued that this delay in recovery has not been explained by the prosecution and conviction of accused u/s 394/34 IPC is bad in law. It is further argued that even the identity of accused as robber could not be established as accused was shown to the complainant in PS and this fact has also been admitted by the complainant during his cross examination, due to refusal of TIP by accused was justified and conviction of accused despite disputed identity is definitely bad in law. It is prayed that accused is entitled for benefit of doubt on this ground alone and impugned conviction as well as sentence is liable to be set aside and accused is entitled for acquittal. Ld. Counsel for the accused has further argued that even mode and manner of arrest of accused in this case is highly suspicious which suggests that accused has been falsely implicated in this case. It is prayed that this appeal is liable to be allowed and conviction as well as sentence is liable to be set aside.
CA No. 98/19 Salman Vs. State 2/23
3. On the other hand, Ld. Addl. PP for State has strongly opposed the submissions of Ld. Counsel for appellant thereby arguing that Ld. Trial Court has given a well reasoned judgment of conviction and it was duly proved beyond reasonable doubt that accused Salman along with co-accused had committed the robbery of the articles of complainant and thereafter robbed articles were also recovered at his instance due to his conviction cannot be faulted upon. It is further argued that accused was duly identified by the complainant before the court during trial and earlier he refused to participate in TIP proceedings due to his identify stands established beyond doubt. It is further argued that refusal of TIP by the accused was definitely at the cost of drawing an adverse inference against him during trial and now accused cannot escape of this adverse inference of refusal of TIP and identity of accused stands proved by this adverse inference. It is further argued that the testimony of PW1 has duly proved the involvement of accused in this case and this appeal is liable to be dismissed. It is further argued that the accused not only robbed the complainant but also got recovered his articles from the nearby places of robbery and this recovery is well admissible in law and this recovery cannot be faulted just because there was some delay in recovery and Ld. Trial court rightly considered the recovery as genuine and this appeal is a misuse of process of law and is liable to be dismissed.
4. I have heard the arguments and perused the record. As per the allegations of the prosecution, on 24.03.2018 at about 11.40 pm, CA No. 98/19 Salman Vs. State 3/23 a DD No. 47B was lodged on the basis of a PCR call made by complainant about the incident of robbery. SI Suresh Bhatia along with Ct. Arun Kumar visited the spot of incident at Waziabad Road, Near Nanaksar Bus Stand, Sonia Vihar, Delhi, but it was revealed that the complainant Mohd. Irfan was not there. On contacting the complainant via telephone, he replied that he was under treatment and assured to make his statement on visiting Police Station. On 27.03.2018, complainant visited the police station and made his statement that on 21.03.2018 at about 9.00 pm, he left his office at Noida to go to his home by his motorcycle bearing no. DL-13SA- 2034 and was having a bag containing HCL Laptop, Rs. 52,000/- cash and three mobile phones with him. It is further stated that at about 11.30 pm, he reached at Bhajan Pura when he received a call of his brother Rizwan who asked him to attend a function, but he refused to attend that function and at about 11.40 pm, he crossed the red light of Nanaksar Gurudwara but again received a phone call of his office known and was attending that call while sitting on his motorcycle when suddenly two boys pushed and dragged him into forest. In forest, one boy in ladies attire with 2-3 other boys beat him and robbed of his laptop, cash and mobile phones besides ATM card, DL, Voter ID and gold ring. All the robbers ran away after committing the robbery and beating him. He reached his home and went to Aruna Asif Ali Hospital for his treatment, but was referred to LNJP Hospital for further treatment, where he was treated. Police lodged FIR. Thereafter, on 28.03.2018, accused Salman along-with three other JCL was arrested and during investigation, accused got CA No. 98/19 Salman Vs. State 4/23 recovered one mobile phone and other articles of the complainant. Accused Salman refused to participate in his TIP. Police charge- sheeted him u/s 392/394/34 IPC, whereas JCL were charge sheeted separately.
5. To prove all the above-said allegations, prosecution has examined PW1 Mohd. Irfan who has deposed that on 21.03.2018 at about 9.00 pm, he left his office at C-43, Second Floor, Gautam Budh Nagar, Sector 65, Noida by his motorcycle and was having a bag containing HCL laptop, three mobile phones, one red colour 32 GB pen drive besides his wallet containing cash of Rs. 17,000/-, RC, DL, Voter ID, Aadhar Card, Pan Card and ATM card. It is further deposed that at about 11.00 pm, his brother Rizwan met him at Bhajan Pura and handed over a cash of Rs. 35,000/- as he was to attend a party. It is further deposed that at about 11.30 pm, he reached near Wazirabad pull when he received a call and was attending that call when suddenly one boy wearing ladies attire pushed him and he fell down with his motorcycle and that boy snatched his mobile phone and ran away. It is further deposed that he followed that boy who snatched his mobile but his 5-6 associates dragged him into forest and started beating him and they robbed his bag containing above said articles and also robbed his shirt, shoes and wallet and also beat him by sticks and caused injuries. It is further deposed that he reached his home and his brother removed him to Arun Asif Ali Hospital for treatment but was referred to LNJP Hospital for further medical treatment. It is further deposed that on CA No. 98/19 Salman Vs. State 5/23 next day, he made PCR call to inform police about the incident and police visited his house to record his complaint Ex. PW1/A, on which basis, FIR was registered. It is further deposed that after one week, he was called to PS where he identified the present accused. Later on, his articles were recovered and he has identified those articles recovered from the accused as Ex. P1 (colly).
6. During cross examination, PW1 has admitted that he disclosed to IO in his statement that at about 11.00 pm at Bhajan Pura his brother Rizwan met him and handed over a cash of Rs. 35,000/-, but it is not recorded in his statement. It is further deposed that the incident occurred at the corner of pantoon pull before purana Wazirabad pull and he disclosed to IO about this place of incident, but it is not recorded in his statement. It is further deposed that one person who was wearing ladies attire pushed him, as a result, he fell down with his motorcycle and that boy snatched his mobile phone and ran away, but it is not recorded in his statement Ex. PW1/A. It is again not found recorded in his statement that all the accused robbed his clothes and shoes also. It is further admitted that on the next day in morning at about 11 am, he left for hospital, but he did not remember the exact time when he made PCR call, however police officials visited his house at about 3.00-4.00 pm after PCR call. It is further deposed that his statement was recorded by the IO at his home in the presence of his wife and brother but their statements were not recorded. He has denied his knowledge about the preparation of any site plan by IO, but it is deposed that his CA No. 98/19 Salman Vs. State 6/23 brother took him to PS for identification of accused, though he did not disclose the description of accused to police. It is further admitted that he did not disclose the denomination of currency notes robbed by the accused and even also did not hand over the bills of laptop, mobile phones and other articles to the IO, and even has not produced these bills before the court.
7. PW1 was again recalled on application u/s 311 of Cr. PC and was cross examined by Ld. APP for state, during which, he has deposed that the site plan Ex. PW1/B1 was prepared by the IO at his instance and, on 13.04.2018, he was called to attend TIP proceedings of JCL but he was not feeling well due to he could not reach to attend that identification parade. He has further admitted that at about 11:40 am, after crossing the red light of Nanaksar, he received a call from Rajat when suddenly two boys came from back side and pushed him due to he fell down and those boys dragged him towards forest. It is further admitted that one boy was wearing ladies dress and other 2-3 also reached there and robbed of his cash, wallet containing DL, RC, Voter ID, Aadhar card and ATM card besides the laptop and pen drive kept in the bag. It is further admitted that he could not call to police on the day of incident and visited PS on 27.03.2018 to make his statement. It is further admitted that on 13.04.2018, IO visited his home to make an enquiry about the identification of JCL but he could not depose this fact during his examination in chief as he was very upset and was also afraid on account of this incident and also of his illness. It is further CA No. 98/19 Salman Vs. State 7/23 deposed that probably the site plan of the spot was prepared at his home, but he did not remember the exact date and time when it was prepared, however he signed the same at his home. It is further deposed that on the day of incident, firstly his brother Rizwan made call and then met him. IO recorded his statement only once.
8. PW2 Ct. Ankit Kundu has proved the arrest of accused on 28.03.2018 at the instance of secret informer by a police team consisting of HC Mintu, HC Vikas and SI Suresh Bhatia. It is further deposed that police team was searching the accused persons in the area of Yamuna Khadar near forest when a secret informer met SI Suresh Bhatia and informed him that accused persons who were wanted in several cases used to come from forest to commit the offence. It is further deposed that when they were searching the robbers, 4-5 boys present behind Nanaksar Bus stand started walking away on seeing them and on being suspicious, they were apprehended and secret informer informed IO that these were the boys regarding whom he informed him. IO interrogated and arrested them. Accused Salman was arrested vide arrested and personal search memo Ex. PW2/A and Ex.PW2/B. It is further deposed that one bag, one wallet containing some IDs and one ladies suit, salwar and duppatta were recovered at the instance of accused from the forest and thereafter, accused Salman pointed out the spot of incident vide pointing out memo Ex. PW2/C. IO seized the articles vide seizure memo Ex.PW2/D and Ex.PW2/E, and seal after use was handed over to him. IO recorded the disclosure statement of CA No. 98/19 Salman Vs. State 8/23 accused vide memo Ex.PW2/F. He has identified the ladies suit, salwar and duppatta as Ex. P2 (colly) and hand bag, wallet and identity card and ATM Card as Ex. P1 (colly). He has admitted during cross examination by Ld. Addl. PP that secret informer met IO near Wazirabad pull.
9. During cross examination, he has deposed that he did not remember as to whether IO had recorded his departure entry before leaving the PS to arrest the accused, but the distance between the PS and place where secret informer met them was about 4-5 km. It is further deposed that SI Suresh Bhatia, HC Mintu and HC Vikas left the PS by a car but he was on his motorcycle. It is further deposed that the secret informer met them in the morning at about 5.00-5.30 am and furnished information in his presence, but he did not remember as to whether secret informer came to the spot by any vehicle or not, however he left the spot at about 7.30-8.00 am, whereas they left the spot at about 8.00-8.30 am. It is further deposed that on seeing them, all the accused started fleeing away from there and scattered in different directions. It is further deposed that he did not remember the time when seizure memo was prepared by the IO, but IO recorded his statement when he returned his seal after use. It is further admitted that arrest memo of accused was prepared at the spot in his presence; however, he did not remember in whose custody the accused was at that time. It is further deposed that the distance between Nanaksar bus stand and place wherefrom the ladies suit-salwar were recovered was about CA No. 98/19 Salman Vs. State 9/23 500-700 meters and the distance between the place wherefrom ladies suit-salwar and the bag was recovered was about 100-200 meters.
10. PW3 SI Suresh Bhatia has also supported the testimony of PW2 and being IO has deposed that on receiving DD No. 47B, he visited the spot of incident and also called Mohd. Irfan, but he refused to give his statement at that time and asked him that he will visit the PS to make his statement. It is further deposed that on 27.03.2018, complainant Mohd. Irfan came to PS to make his statement Ex.PW1/A, on which basis, he prepared rukka Ex.PW3/A and got registered FIR through Duty Officer. It is further deposed that he prepared the site plan of the spot of incident Ex.PW1/B1. It is further deposed that on 28.03.2018, during search of accused, one secret informer met him and informed that persons who were involved in the recently committed cases were present in the jungle of Yamuna Khadar and during search he noticed 5-6 boys present behind Nanaksar bus stand and on interrogation, they could not reply satisfactorily and disclosed their involvement in the present case. It is further deposed that accused Salman got recovered one bag of black colour containing some ID Cards, ATM Card, one purse of cherry colour besides one pink colour suit-salwar which were seized vide seizure memo Ex.PW2/D and Ex.PW2/E. It is further deposed that accused also pointed out the spot of incident, on which basis, he prepared pointing out memo Ex.PW2/C. Accused Salman was arrested and personally searched vide memos Ex.PW2/A and CA No. 98/19 Salman Vs. State 10/23 Ex.PW2/B and disclosed the name of other JCLs who were also arrested. It is further deposed that he also recorded the disclosure statement of accused Salman. It is further deposed that he also moved an application for TIP of accused, but accused Salman refused to participate in TIP proceedings.
11. During cross examination, PW3 has admitted that he did not make any departure entry while leaving the PS to the spot of incident, but he lodged his arrival entry. It is further deposed that complainant with his brother visited the PS to make his statement on 27.03.2018, but he did not record the statement of the brother of accused. It is further deposed that on 27.03.2018, he did not make his departure entry while leaving the PS to the spot, but, on 28.03.2018, he left the PS after 12.00 am (midnight) along-with his staff and was on his motorcycle, whereas other staff was on their separate motorcycles, and they lodged departure of their leaving of the PS. It is further deposed that the secret informer met him at about 2.00 to 3.00 am and conveyed the information when he was alone, but he further conveyed the information to SHO. It is further deposed that the recovery of hand bag was effected from a distance of about 100 meters from Nanaksar bus stand and the recovery of suit-salwar was effected from 10 meters away from the spot of first recovery. It is further deposed that he did not seize the bills of mobile phone, gold ring and laptop from the complainant as he was busy in investigation. It is further deposed that he saw 5-6 boys at about 5.00-6.00 am, whereas secret informer left the spot at about 3.00-
CA No. 98/19 Salman Vs. State 11/23 3.30 am itself and he finally left the place of apprehension of accused at about 9.30 pm. It is further deposed that the recovered items were seized at the spot at about 7.00 am. He has admitted that the statement of Ct. Sharvan was recorded on 27.03.2018 and copy of the same is Mark 'X' which bears his signature at point A. It is further deposed that his signature on statements Mark 'X' and Mark 'Y' are different, but the statement Mark 'Y' bears his signature, however Mark 'X' does not bear his signature. It is denied that the signature on Mark 'Y' at point A is anti-dated and anti-time. He recorded the disclosure statement of accused Salman at PS at about 10.00 am, whereas he prepared the arrest memo of accused at the spot itself. It is further deposed that Ct. Ankit Kundu caught hold the accused Salman while preparing his arrest memo.
12. PW4 ASI Bhagwat Swaroop has proved FIR Ex.PW4/A and endorsement of IO on rukka as Ex. PW4/B. He lodged FIR after lodging DD No. 10A which is Ex. PW4/C.
13. PW5 Ct. Sharvan also joined the investigation with other police officials on 28.03.2018 when 4-5 persons including accused Salman were apprehended by SI Suresh Bhatia. He also witnessed the recovery of one black colour carry bag at the instance of accused besides recovery of one ladies suit, salwar and duppatta which were also seized in his presence. He has also identified the recoveries made at the instance of accused Salman and also the pointing out memo prepared by IO.
CA No. 98/19 Salman Vs. State 12/23
14. During cross examination, he has admitted that the signature of IO on his statements Mark 'X' and Mark 'Y' and the dates on the copy of statement supplied to accused Mark 'X' is different. He was not aware as to whether IO requested any public person to join investigation, but recoveries were effected from a distance of about 100-200 meters from Nanaksar Bus stand and firstly bag was recovered and thereafter, suit-salwar from a distance of about 20-30 meters.
15. PW6 ASI Mohan Lal Meena has admitted that he filed charge-sheet in the month of June, whereas the date under signature of SHO Inspector Daya Sagar is 11.06.2018.
16. I have heard the arguments and perused the record. After going through the testimonies of PWs, it is revealed that the testimony of PW1 has material contradictions in comparison to his earlier statement u/s 161 of Cr.PC. First of all, I am taking up the plea of delay in lodging FIR raised by the Ld. Counsel for the accused. In fact, incident took place on 21/03/2018 at about 11:40 pm, whereas PCR call vide DD No.47B was made on 24/03/2018 and FIR was lodged on 27/03/2018. As such, there was a delay of about 3 days in lodging PCR call and total 7 days delay in lodging FIR. Even the statement of complainant was also recorded on 27.03.2018, on which basis, this FIR was lodged. This long delay of 7 days in lodging FIR could not be explained by the police or complainant. PW1 Md. Irfan has tendered his explanation to this CA No. 98/19 Salman Vs. State 13/23 delay that he was not well after the incident and was under
treatment, but his MLC Ex.A1 has proved that he visited the hospital for his treatment on 22/03/2018 at 12:56 am and suffered only minor injuries on his head and face, but injuries suffered by him were not of such nature to restrict to him to inform police or to take 3 days to recover to make even PCR call. Again, it is also not explainable as to why police did not visit the hospital to record the statement of the complainant on the same day when PCR call was lodged by the complainant. Police took 3 days in recording the statement of the complainant despite receiving the PCR call and even after communication with him. As such, this delay in lodging PCR call and further delay in lodging FIR could not be explained by the prosecution just by citing medical condition of the complainant, especially when the injured was not confined to bed for treatment. Any delay in reporting the incident or in lodging FIR is fatal, if not explained satisfactorily and so in this matter.
17. Now come to the mode and manner of incident reported by the complainant and proved by the PWs. The testimony of PW1 would show that it has various contradictions which are material. He has deposed that on 21.03.2018 at about 11.30 pm, he reached near Wazirabad pull when received a call and stopped his motorcycle to attend that call when one person wearing ladies suit-salwar pushed him and he fell down along-with his motorcycle and that boy snatched his mobile phone and ran away. He chased him and his other associates dragged him into forest and robbed of his all articles CA No. 98/19 Salman Vs. State 14/23 including his clothes and shoes. On the other hand, his testimony during cross examination is totally different, in which, he has admitted that he was attending the call of one Rajat when two boys came from the back side and pushed him and dragged towards forest. This contradiction is material to dispute the mode and manner of incident.
18. Further, the testimony of PW1 is again different on the aspect of robbed cash amount. PW1 has deposed that at about 11.00 pm, his brother Rizwan met him at Bhajan Pura and handed over a cash of Rs.35,000/- as he was going to attend a function, but this testimony is totally changed during his statement recorded by the police which is Ex.PW1/A, as per which, he never met his brother at Bhajan Pura to collect the amount of Rs.35,000/- allegedly robbed by the robbers. Though this fact could have been proved by the brother of complainant namely Rizwan, yet prosecution has neither citied nor examined him as witness to this case. In fact, it could not be proved that Rizwan ever handed over any such cash amount of Rs. 35,000/-
to complainant and the amount of Rs. 52,000/- including this amount of Rs.35,000/- was ever robbed. Admittedly, PW1 did not disclose the denomination of currency notes in his statement or otherwise to prove his claim that he was in possession of such amount and it is again a material contradiction. Even the statement of the PW1 recorded by the IO is also suspicious on account of mode and manner of recording this statement. PW3 has deposed that the complainant alongwith his brother visited to PS to make his CA No. 98/19 Salman Vs. State 15/23 statement Ex. PW1/A, whereas PW1 has deposed that police visited his home to record his statement and it is again a material contradiction. PW1 again changed his version during his re- examination by Ld. APP for State that his statement was recorded in PS. In fact, the mode and manner of incident initially disclosed by complainant in his statement Ex.PW1/A and recorded before the court having material improvement which is fatal to the case of prosecution. Similarly, PW1 has deposed that his laptop, three mobiles and gold ring were also robbed by the robbers, but again PW1 has admitted that he did not hand over any receipt or ownership bill of such articles. On the other hand, IO has also admitted that he did not collect such receipts due to his busyness in official work. In fact, both the statements have proved the casual attitude of complainant and IO during the investigation. As such, again it could not be proved that PW1 was carrying alleged robbed articles at the time of alleged incident or that those articles were really robbed. Admittedly, none of articles was recovered soon after the incident or out of the possession of accused to raise any presumption that he had stolen such articles or was the thief/ robber of these articles.
19. Though accused Salman has been charged to commit the robbery of the articles of the PW1, yet the involvement of the accused to this incident is not clear from the testimony of PW1. Admittedly, PW1 did not disclose the description of the robbers/ accused to the police in his statement or otherwise and even police CA No. 98/19 Salman Vs. State 16/23 also did not ask him such description, but still police arrested the accused persons and also shown accused Salman to PW1 in Police Station. PW1 has admitted during cross examination that "it is correct that he had identified the accused in PS". This testimony of PW1 is sufficient to prove that he was not sure about the identity of the robbers especially accused herein who committed the robbery of his articles. PW3 has deposed that he moved an application before Ld. CMM for conducting TIP of accused but accused refused for such TIP, however such TIP was of no use as accused was already shown to the complainant in PS prior to this TIP. Accused took a plea for refusal of his TIP that he had been shown to complainant in PS and the admission of the PW1 has corroborated this reason of refusal of TIP by accused and such refusal of TIP was justified. As such, the identity of the accused could not be established as one of the robbers of the complainant.
20. Further, the mode and manner of arrest of the accused is also doubtful. Accused was arrested on 28.03.2018 in the early morning and PW2 Ct. Ankit Kundu, PW3 SI Suresh Bhatia and PW5 Ct. Sharvan witnessed this arrest and also the recoveries pursuant to this arrest. However, the testimonies of the above said witnesses have material contradictions regarding the mode and manner of arrest of accused. PW2 Ct. Ankit Kundu has deposed that on 28.03.2018, police team noticed 4-5 boys present behind Nanaksar bus stand and apprehended them on suspicion when they started slipping away to see the police team and meanwhile secret informer CA No. 98/19 Salman Vs. State 17/23 also informed IO that these were the boys who were involved in the incident and they were arrested on interrogation. However, the testimony of PW2 is against the testimony of PW3 who has deposed that the secret informer met him near the red light and informed that the boys involved in the recent incidents in the area of Sonia Vihar were present in the jungle of Yamuna Khadar and accused along with others was apprehended. As such, the place of meeting of secret informer is different in the testimony of PW3 which was near Wazirabad pull. In fact, both the places were different and police have not prepared any site plan to prove the exact location of arrest of accused as well as meeting place of secret informer and actual location of the arrest of accused remained disputed.
21. Admittedly, accused was arrested on secret information but the mode and manner of such information is also disputed. PW2 has deposed that this information was given by informer in his presence, whereas PW3 has deposed that information was given to him when he was alone. On the other hand, no DD entry has been proved to prove that any such information was ever received by IO. PW2 has deposed that the secret informer met IO near Wazirabad pull at about 5.30 am, whereas PW3 has deposed that he met at Nanaksar red light and again both places were different and is a material contradiction. Similarly, timings of meeting of secret informer are also different. PW2 has deposed that secret informer met them at about 5:00/5:30 am and remained with them till about 7.00-8.00 am, when they finally left the spot, whereas PW3 SI Suresh Bhatia has CA No. 98/19 Salman Vs. State 18/23 deposed that the secret informer met him at about 2:00/3:00 am and left the spot at about 3:00/3:30 am itself, whereas he noticed and apprehended 5-6 boys at about 5:00-6:00 am. This is a major contradiction which has rendered any secret information useless and has proved that the precise secret information leading to the arrest of accused persons was not available with police team and manner of arrest of accused is totally doubtful. Even otherwise, such secret information was not specific about any particular accused to prove the involvement of accused to this case.
22. Further the mode and manner of reaching the raiding party to the spot of incident is also doubtful. PW2 has deposed that police team reached the spot by car being driven by PW3, whereas PW3 has deposed that the police team reached the spot by their own motorcycles and it is again a material contradiction.
23. PW3 has further admitted that he saw 5-6 persons at about 5.00-6.00 am and apprehended them on the basis of suspicion and PW2 has also corroborated this fact, but their identity as robbers of the complainant was not clear and they might have committed some other offence, but their involvement as robber to this case is not proved.
24. Now issue of recovery of the robbed articles at the instance of accused has to be dealt with. Though all the material and costly items have not been recovered at the instance of accused, yet CA No. 98/19 Salman Vs. State 19/23 certain articles like DL, RC, Voter ID, ATM and Aadhar card of complainant have been allegedly recovered at his instance. Ladies suit, salwar and duppatta have also been recovered. First of all, it could not be proved by the prosecution as to which particular accused committed the robbery in ladies attire which has been allegedly recovered at the instance of accused. PW1 has not deposed any fact that accused Salman used such clothes while committing the robbery due to there is no evidence regarding use of such clothes.
25. Besides the above said facts, the alleged incident took place on 21.03.2018, whereas this recovery has been effected on 28.03.2018 and recovery is highly belated. It is pertinent to mention here that this recovery of articles was not made in pursuance of any disclosure statement of the accused to bring it within the preview of the section 27 of Evidence Act, as PW3 has admitted that he recorded the disclosure statement of the accused in PS at 10:00 am. The recovery of the robbed articles from an open place accessible to all cannot inspire confidence. Even the actual spot of recovery is also disputed. Testimony of PW2 would show that the distance between Nanaksar bus stand and the place wherefrom the ladies suit salwar was recovered was about 500-700 km and the bag was recovered about 100-200 meters from that place, whereas PW3 has deposed that recovery of hand bag was effected at a distance of about 100 meters from Nanaksar bus stand and the recovery of suit- salwar was effected from 10 meters away from the first place of CA No. 98/19 Salman Vs. State 20/23 recovery. On the other hand, PW5 Ct. Sharvan has deposed that the recovery was effected at the distance of 100-200 meters from Nanaksar bus stand and firstly bag was recovered and thereafter from a distance of 20-30 meters, ladies suit salwar was recovered. The testimonies of all 3 witnesses have material contradictions regarding the place of such recoveries and have disputed these recoveries. Contrary to it, there is no site plan to prove the actual place of recovery to remove the doubt.
26. Further, it is beyond explanation that there was a gap of about 7 days during the incident and alleged recovery but accused strangely kept these articles safe to get recovered from the police during custody, whereas he sold out all the costly items like laptop, ring, mobile phones etc. Strangely accused sold laptop to passerby but kept the bag intact and did not sell out the same with laptop. In fact, it appears either the actual robbers were someone else who might have thrown these articles there after committing robbery or these articles have been planted upon the accused.
27. There are also material lapses in the investigation also. During the cross examination of PW3, statement Mark 'X' has been put to him and stated to bear his signature. This statement was recorded on 27.03.2018 whereas accused was arrested on 28.03.2018. PW5 has not disputed this statement. The date of this statement has proved that statement Mark 'X' had already been recorded one day prior to the arrest of the accused persons in this CA No. 98/19 Salman Vs. State 21/23 case and the prosecution has not tendered any explanation to it. Rather it has casted a doubt on the story of the prosecution. Besides it, the charge-sheet against the accused filed by IO has material defect. Chargesheet got forwarded from ACP concerned on 11.06.2018, whereas SHO concerned signed it on 11.08.2018. This fact reflects that SHO and ACP Khajuri Khas Mr. Rajnikant Awadhiya have not discharged their responsibility sincerely. The power to forward chargesheet has been conferred upon ACP concerned in terms of Section 158 Cr.P.C keeping in view his senior position and also to keep check on misuse of power by SHO and IO, but in this case, ACP concerned itself has failed to discharge this obligation and blindly signed the charge-sheet on 11.06.2018 i.e. before signing the SHO concerned who forwarded it on 11.08.2018 i.e. after two months of forwarding by ACP. This lapse cannot be said just a routine lapse and has serious consequences. In fact, charge-sheet was filed in terms of Section 173 of Cr.P.C. Even the cognizance ought not to be taken on such chargesheet. As such, it is again lapse on the part of prosecution.
28. Keeping in view the facts and circumstances of the case, I am of the opinion that prosecution has failed to prove the identity of accused Salman as robber who allegedly committed the robbery of the articles of the complainant and his identify is disputed. Recovery of robbed articles at the instance of accused is also defective and could not be connected to the accused. As such, false implication of accused may not be ruled out, accordingly, accused is entitled for CA No. 98/19 Salman Vs. State 22/23 benefit of doubt. This appeal is allowed and accused Salman is hereby acquitted of all charges levelled against him. Consequent to it, the Judgment of conviction dated 25.09.2019 and sentence order dated 23.11.2019 are also set aside. Accused be released from the custody, if not required in any other case or not wanted in any other case, subject to furnishing of Bail Bond in the sum of Rs, 25,000/- with one surety of like amount in terms of section 437-A of Cr.P.C within 7 days to ensure the appearance of accused before the appellant court, in case of filing of further appeal by the prosecution. Previous Bail Bond, if any cancelled. Surety discharged.
29. Copy of Judgment be supplied to accused free of cost. Intimation also be sent to Jail Authorities. Copy of the order also be sent to Joint CP concerned to look into the matter regarding the conduct of ACP concerned and to file Action taken report within 4 weeks.
TCR be sent back to the concerned court along-with copy of Judgment. Appeal file is consigned to record room.
Announced in open court (Devender Kumar)
today on 05.04.2021 Additional Sessions Judge-02
(NE): Karkardooma Courts, Delhi.
CA No. 98/19 Salman Vs. State 23/23