Judgment:
$~R-42 * IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on:-
"IS"* December, 2018 + CRL.A. 288/2002 . SANDEEP Appellant Through; Mr. Harsh Prabhakar, Ms. Anjana Prabhakar & Mr. Anirudh Tanwar, Advs. with appellant in custody versus STATE N.C.T. OF DELHI Respondent Through: Mr. Amit Ahlawat, APP for the State. HON'BLE MR. JUSTICE R.K.GAUBA ORDER (ORAL) 1. In the wake of daily dairy No.12/A (Ex.PW-3/A) recorded at 11 a.m. in police station Mayapuri, on the ^sis of input received from police control room on the wireless network, about a^.person suspected to be involved in pick pocketing being beaten up by public persons in front of Mayapuri Petrol Pump, Head Constable Narpal Singh (PW-4) went to the place of incjdent with Constable Mahender Singh (PW-6). They statedly came across Satpal Mehta (PW-2) on the basis of whose statement (Ex.PW-2/A), first information report (FIR) No.232/1998 was registered (Ex.PW-3/B) for offences under Sections
of the Indian Penal Code, 1860 (IPC). It is alleged by the prosecution that the appellant had stolen Rs. 300/-, in the form of three currency notes of the denomination of Rs. 100/- each along with one visiting Crl.A. 288/2002 Page I of4 'C. card from the first informant and when he protested the appellant had extended threats to him by whipping out a knife (Ex.P-1). The police also seized the said knife vide formal proceedings (Ex.PW-2/D) to which PW-2 was an attesting witness. A separate FIR No.233/1998 was registered for the offence under Sections 25 and 27 of Arms Act. Two reports (charge-sheets) were submitted in due course based on the evidence gathered during investigation into the said FIRs. Both charge-sheets came to be clubbed together for the appellant to be put in the court of sessions on the charge for offences under on trial Section 397/392/411 IPG and 25 and 27 of Arms Act.
2. The trial culminated in judgment dated 24.12.2001, whereby the appellant was held guilty and convicted on the charge for offences under Section 397 IPG and Section 27 Arms Act. By order dated 02.03.2002, the trial judge awarded rigorous imprisonment for seven years on the first count and rigorous imprisonment for three years with fine of Rs. 1,000/-on the second count. C3 The appeal at hand was submitted to assail the said judgment and order on sentence. , 4. Having heard the arguments on both sides and having gone through the record, this Gourt finds a glaring gap in the evidence adduced by the prosecution. Going by the documents which were prepared during the police proceedings, including the statement of the first informant (PW-2) and the seizure memos, by the time the police officials had reached the spot, the recoveries had already been effected. In the FIR, the first informant was not clear as to who had taken the search of the person apprehended leading to recovery of his Crl.A. 288/2002 Page 2 of4 money and the visiting card of which he had been relieved forcibly during the bus journey. He vaguely talked of such recoveries having been made from the right side pocket of the trouser of the appellant who had been caught on the spot and thereafter given beatings by the public at large. He was not forthcoming about the role of the driver or conductor of the bus (plying on the route No.753) in which the incident had taken place. No public person who was engaged in the r- apprehension of the appellant was examined or identified. During the evidence for the prosecution at the trial, PW-4 only spoke about he having met PW-2, who was holding on to the appellant when he arrived at the place where the incident had occurred. He would not even speak about the presence of the bus or its route. From the allegations in the FIR to the effect that the passengers in the bus had left the scene it may be assumed that the bus and its crew had stayed back. It is, however, admitted that the statements of the driver or conductor were not even recorded. c 5. Be that as it may, PW-4 also testified that it was PW-2 who had handed over to him the knife (Ex.P-1) and the three currency notes of the denomination of Rs. 100/- each, along with one visiting card. It is clear from this narration that the police officials had not taken the search so as to lead to the recoveries. The averments in the FIR that the said money and visiting card has been recovered upon search of the right pocket of the trouser of the appellant, thus, have not been proved.
6. PW-2, in contrast, was totally hostile to the prosecution. He would not even identify the appellant as the person who had been CriA. 288/2002 . Page 3 of4 apprehended nor would state the sequence of events leading to he being arrested by the police, not the least of any facts about the recovery. He was declared hostile and subjected to cross-examination. During the cross-examination, the prosecution itself suggested to him, and he lapped it up as a correct fact, reiterating that the police had recovered the knife, the money and the visiting card. This obviously cannot be believed as it was never the case for the prosecution since beginning.
7. For the above reasons, the evidence of PW-2 cannot be acted upon. In the facts and circumstances,-tllere is no evidence worth the name proving the acts of conimission or'omission on the part of the appellant leading to robbery; oi^'possessiph;Jpf The prosecution in these circurnistances cannot succeed. The 8. impugned judgment and order onsenienbe rare set aside. The appellant is acquitted. He shall be^releasedsfq^^ from custody. These Jail forthwith. directions be communicated--to.Siiiip'0rihlerid^^ DECEMBER18 2018 nk R.K. GAUBA,J.
Crl A. 288/2002 Page 4 of4