Shamshad v. State

1. Shaqueel @ Mulla, Shamshad, Imran and Bhuran were arrested in case FIR No. 580/2004 PS Sarai Rohilla and sent for trial alleging that on 22.10.2004 at 06.30 P.M. they in furtherance of common intention with their associate Rashid (Proclaimed Offender) committed 2014:DHC:1165 dacoity at house No. A-175, Shashtri Nagar, Delhi and deprived the complainant – Kamlesh of ` 2.[5] lacs, gold bangles, gold rings and gold chain. Daily Diary (DD) No.20 A (Ex.PW-4/A) was recorded at PS Sarai Rohilla on 22.10.2004 at 19.32 hours on getting information of the dacoity. The investigation was assigned to SI Rajender Singh Khatri who with Const. Devender Kumar went to the spot. After recording Kamlesh’s statement (Ex.PW-2/A), he lodged First Information Report. The investigation was taken over by SI Arvind Pratap Singh on 07.11.2004. Efforts were made to find out the assailants but in vain. On 23.11.2004, on the basis of secret information, Imran and Shamshad were arrested and from their possession one country-made katta and two cartridges, each, were recovered for which separate cases under the Arms Act were registered. It is alleged that pursuant to their disclosure statements, involvement of Shaqueel @ Mulla, Rashid and Bhuran surfaced. Shamshad recovered ` 7,000/- from his house No. A-23, Shashtri Nagar; Imran recovered ` 10,000/- from Shamshad’s shop. Shaqueel recovered `58,000/- from the almirah in his house. He did not participate in the Test Identification Parade. Statements of the witnesses conversant with the facts were recorded. After completion of investigation, Shamshad, Imran and Shaqueel were charged and brought to trial. Bhuran and Rashid were declared Proclaimed Offenders. The prosecution examined twelve witnesses. In 313 statements, the accused persons pleaded false implication and denied their complicity in the crime. On appreciating the evidence and after considering the rival contentions of the parties, the Trial Court, by the impugned judgment convicted Imran, Shaqueel and Shamshad under Sections 395/397 IPC and sentenced them for various prison terms.

2. It is relevant to note that Imran had filed Crl.A.NO. 1286/2011 decided by this Court on 28.02.2013. Detailed reasons were noted for Imran’s acquittal in the said appeal. The prosecution version regarding apprehension of Imran and Shamshad on 23.11.2004 and recoveries effected at their instance was not accepted. Number of other discrepancies and inconsistencies were referred in the judgment to set aside the conviction and sentence of the appellant – Imran therein. Case of the present appellants – Shaqueel and Shamshad stands on same footing. The prosecution witnesses have given divergent version about the arrest of Shaqueel and Shamshad. Learned Addl. Public Prosecutor urged that ` 58,000/- were recovered from the possession of Shaqueel and he also declined to participate in the Test Identification Proceedings. These circumstances, in my view, are not sufficient to base conviction. It is alleged that ` 58,000/- were recovered when co-accused Imran led the police team to X-40, Gali Peepalwali, Welcome. There was a tailoring workshop on the ground floor. Imran pointed out towards Shaqueel as his associate in the robbery. Shaqueel was arrested by arrest memo (Ex.PW- 3/F) and disclosure statement (Ex.PW-5/H) was recorded. He recovered one polythene containing cash ` 58,000/- from the fourth floor of his house. It is alleged that PW-2 (Kamlesh) and PW-3 (Sanjay Goyal) were with the police at that time. PW-2 (Kamlesh) and PW-3 (Sanjay Goyal) have given entirely conflicting statement about the arrest and recoveries effected at the instance of the accused persons. The reasons given for acquittal in Crl.A.No. 1286/2011 pertaining to Imran are equally applicable to Shaqueel and Shamshad. Detailed reasons are not required to be given and repeated in these appeals.

3. In the light of reasoning given in Crl.A.No. 1286/2011, the conviction and sentence of the appellants – Shakeel and Shamshad cannot be sustained. They deserve benefit of doubt. The appeals are accepted and they are acquitted. They be set at liberty forthwith if not required to be detained in any other case. Pending application also stands disposed of being infructuous. Trial Court record be sent back forthwith with the copy of the order. A copy of the order be sent to the Superintendent Jail for information.

JUDGE MARCH 04, 2014