Delhi District Court
Sunder vs . State on 28 November, 2013
Sunder Vs. State
CA No. 115/13
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDITIONAL SESSIONS JUDGE
DWARKA COURTS : DELHI
In the matter of :
Sunder
S/o Sh. Narender Kumar
R/o H. No. 853
Mandir Wali Gali
Near Fun and Food Village
Kapashera, New Delhi37 ...........Appellant
VERSUS
State ( Govt of NCT of Delhi
............Respondent
CA No. 115/13
Date of Institution: 22.03.2013
Reserved for orders on: 28.11.2013
Order announced on: 28.11.2013
ORDER
1. Vide this order, I shall dispose of the present appeal arising out of impugned judgment order dated 04.02.2013 and on 11.10.2013, connected appeals bearing No. CA no. 46/14 and CA no.48/13 have already been decided vide judgment dated 11.10.2013.
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2. The brief facts, in the nutshell are that as per the prosecution story, on 06.02.2011 between 5 p.m to 6.30 p.m at road near Sector 10 Metro Station, Dwarka, Delhi , the complainant Rajeev Kumar Jha was given a lift in a white coloured Indica bearing registration no. UP 16 AT 0117 to which he agreed. It is further alleged that then, he was robbed by three persons sitting in the car of his cash of Rs. 350/, mobile phone Nokia 3110 C and his pen drive and thereafter, he was dropped and he contacted the police. It is further alleged that after some time, the car and the culprits namely Narender, Dinesh alongwith co accused Sunder were apprehended and arrested and the stolen property was recovered from them. Thereafter, the FIR was registered on the statement of the complainant Rajeev Kumar Jha and the appellant/ accused and was chargesheeted under Section 392/411/34 IPC.
3. It is further alleged that on appearance of the appellant/accused persons Section 207 Cr.P.C. was complied with and prosecution examined six witnesses and after holding full fledged trial, the appellant/ accused persons were convicted under Section 392/34 IPC and was accordingly sentenced.
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4. Feeling aggrieved by the impugned conviction and sentence order of the Ld. Trial Court, the appellant/accused person filed the present appeal before this Court.
5. It has been contended by the Ld. Counsel for the appellant/accused that the judgment and order on sentence passed by the ld. trial is ex facie contrary to the establish principles of law and the facts of the present case, if allowed to stand, serious miscarriage of justice shall occasion to the appellant. Therefore, the same are liable to be set aside .
6. It is further contended that ld. trial court has failed to appreciate that the evidence of star witness PW2 Rajeev Kumar Jha/ complainant suffers from various contradictions and is not trust worthy. It is further contended that ld. trial court failed to appreciate that PW2 categorically stated that he was unable to identify the accused persons due to lapse of time and therefore, the appellant deserved the benefit of doubt on that count but the ld. trial court gave no credence to this important aspect. It is further contended that PW2 has also stated that when he sat in car there were five persons sitting in the car but later he stated that after a while two persons got down. PW2 has also stated that after some time, CA No.115/13 -:3:- 28.11.2013 Sunder Vs. State CA No. 115/13 the driver stopped the car and one person and the driver got down to attend the call of natural then, one other person entered in the car and caught hold of complainant PW2 and started searching his pocket, therefore, whole story of complainant appears to be a cock and bull story.
7. It is further contended that ld. trial court failed to appreciate that the complainant did not tell the exact registration number of the offending vehicle and thus , the ld., trial court failed to appreciate that the testimony of PW2 Rajeev Kumar Jha is not reliable evidence. It is further contended that as per the complainant evidence, incident took place near to Sector 10, Metro Station Dwarka, New Delhi between 5 p.m to 6.30 p.m which is very busy place but the prosecution did not cite any public witness which makes the story of prosecution highly probable.
8. It is further contended that in first statement / complaint Ex.PW2/A, the complainant stated that he called the plice at no.100 but it was pointed out that the phone of the complainant was robbed by the accused , then how could he called at no.100 but in his testimony , the complainant stated that he had contacted PCR standing nearby. It is further contended that in his examination in chief, PW2 has CA No.115/13 -:4:- 28.11.2013 Sunder Vs. State CA No. 115/13 categorically stated that he was robbed by two persons, while the third person went for call of nature and he attributed no role to the third occupant of the car and during the entire trial, it has not been clarified as to who were those two persons who had allegedly robbed him/complainant.
9. It is further contended that ld. trial court also failed to appreciate that PW4 Ct. Dharmender has stated that they had received message of snatching by one boy but as per the case, the said snatching was done by three persons hence, it is very clear that a false story has been cooked up by the prosecution and thus, the ld. trial court has failed to appreciate the variation, contradiction and inconsistency in the statements of the prosecution witnesses. It is further contended that the judgment and order passed by ld. trial court is based on conjectures and surmises and prays for setting aside the same.
10. It is further contended that there is not an iota of legal unimpeachable evidence to hook the appellant in the present case nor even is there any ostensible reason apparent on the record to establish the guilt of the accused beyond reasonable doubt and therefore, appellant deserves to benefit of doubts and be acquitted of all the charges. Ld. CA No.115/13 -:5:- 28.11.2013 Sunder Vs. State CA No. 115/13 counsel for the appellant Dinesh also relied upon judgment Sheikh Hasib @ Tabarak Vs. State of Bihar AIR 1972 SC283, Brahm singh Vs. State ( NCT of Delhi ) Manu/DE/3020/2009 and Hardial Singh Vs. State of Punjab AIR 1992 SC1871 and Surendra Singh Rautela Alias Surender Singh Bengali Vs. State of Bihar withh Mohd. Anis Vs. State of Jharkhand (2002) 1 SCC266.
11. Per contra, Ld. Counsel for the State has contended that PW2 has deposed in un equivocal terms that he was robbed by the accused persons and were apprehended on the same day. It is further contended that the complainant correctly identified the accused persons at the spot of arrest and robbed case property was also recovered from the accused persons so, the fact of apprehension of the accused, recovery of the case property and the identification of the accused persons have been proved through testimony of police officials and as well as by the complainant and testimony of these witnesses remained unrebutted, so there is no substance in the appeal and the same deserves to be dismissed. It is further contended by the Ld. State Counsel that Judgment relied upon the Ld. Counsel for the appellant/accused Dinesh are not applicable to the facts and circumstances of the present case .
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12. I have heard Ld. Counsel for the parties and gone through the record.
13. The first contention of Ld. Counsel for the appellant is that the evidence of star witness PW2 Rajeev Kumar Jha/ complainant suffers from various contradictions and is not trust worthy and PW2 categorically stated that he was unable to identify the accused persons due to lapse of time and therefore, the appellant deserved the benefit of doubt on that count . In the present case , the complainant could not identify the accused persons during his examination before the Ld. trial court stating that he cannot identify the accused persons due to lapse of time. Even in his cross examination, he stated that he does not know as to who had slapped him and that there were only two persons in the car and when he was robbed of his belongings one person was standing outside the car and one was sitting inside the car.
14. It is admitted fact that connected appeals filed by accused Dinesh Singh and Narender Kumar bearing Nos.CA no.46/14 and CA no.48/13 have been allowed vide order dated 11.10.2013.
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Sunder Vs. State
CA No. 115/13
15.From bare perusal of said statement of the complainant,
who is only the star witness and was the best person to
identify the robbers, it can be inferred that PW2 could not identify the accused with certainty. However, he has also stated about presence of two accused at the time of committing robbery upon the complainant and thus, the evidence which has come on record regarding identity of the accused is doubtful. PW2 complainant failed to identify the appellant/ accused in the court by stating that on account of lapse of time, he is unable to identify the appellant as perpetrator of crime. Therefore, even if the appellant/ accused was arrested in the presence of PW2 by police, appellant cannot be held liable for commission of offence in question as PW2 failed to identify them in the court and substantive evidence is the examination in chief and cross examination of witnesses on oath and identification of appellant/ accused at the time of their arrest is immaterial if witness failed to identify accused in the court and law is well settled that identification of accused by witness in TIP who failed to identify accused in court cannot be relied upon to convict the accused. Therefore, the identity of appellant / accused is doubtful and they deserves the benefit of doubt and to the same effect is the ratio of case law relied upon by the counsel of the CA No.115/13 -:8:- 28.11.2013 Sunder Vs. State CA No. 115/13 appellant.
16. In view of the above discussion, appeal of the appellant are allowed and the impugned order of conviction and sentence are hereby set aside and appellant is hereby acquitted by giving benefit of doubt and appeal is disposed of accordingly.
17. TCR be sent back to Ld. Trial Court with copy of order for information and compliance.
18. File be consigned to record room.
Announced in the open court (Vijay Kumar Dahiya)
on the 28th of November, 2013 ASJ/ Dwarka Courts
New Delhi
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