Full Text
HIGH COURT OF DELHI
CRL.L.P. 275/2017 and CRL.M.A. 7648/2017
STATE GNCT OF DELHI ..... Petitioner
Through: Ms Meenakshi Chauhan, APP for State.
SI Parveen Kumar, PS Kotwali, Delhi.
Through: Mr Anubhav Panwar, Mr Ajay Kumar and Mr Tarun Soni, Advocates.
VIBHU BAKHRU, J
JUDGMENT
1. The petitioner has filed the present petition seeking leave to appeal against a judgment dated 06.08.2016 passed by the Learned Special Judge, whereby the respondents were acquitted of the offences under Sections 395/120-B of the Indian Penal Code,1860 (IPC).
2. The proceedings in the present case were launched pursuant to FIR no. 87/2012 under Sections 392/395/398/411/34 of the IPC, registered with PS Kotwali.
3. It is the prosecution’s case that on 03.04.2012, one Pawan Sethi, who is a resident of Saharanpur, Uttar Pradesh came to Delhi alongwith 2020:DHC:1651 his employee Rohit Kashyap (the complainant) to buy Sarees and Lehangas. At about 5:00 am, they reached the shop of Sh Pawan at Shyam Market. They opened the shop and Mr Rohit started cleaning it. Pawan proceeded for taking a bath and, thereafter, went to the temple. It is alleged that while Rohit was working alone at the shop, three/four boys (the respondents herein) entered the shop, started hurling abuses at him. They enquired as to whereabouts of Pawan. It is alleged that, thereafter, one of the boys gagged the mouth of Rohit with a saree and one other boy told him to keep his mouth shut. A third boy took out a knife. He broke open the lock of the cash box and took away the cash lying inside it. Thereafter, all the boys fled after pulling down the shutter of the shop down. When Pawan returned from the temple, Rohit narrated the incident to him. Thereafter, they went to the police post of PS Kotwali. However, being afraid and in a perplexed state of mind, they did not report the incident to the Police and left for Saharanpur.
4. They reported the incident to the police on 07.04.2012. Consequently, an FIR was registered initially for the offence under Sections 392/34 of the IPC. It is stated that on 08.04.2012, four of the accused were arrested by Head Constable Suresh Kumar, PS Timarpur. It is stated that the accused Arif and Durgesh Chobey were apprehended on 07.04.2012 pursuant to FIR No. 70/2012, registered with PS Timarpur. Their disclosure statements were recorded and thereafter, one Arjun @ Ajju, Ajay Saini and Anil were also arrested on the intervening night of 07.04.2012/08.04.2012. Thereafter, the accused Ajay Saini took the police officials to house no.44, second floor, Yogesh Colony and opened the lock of the room and a sum of ₹3,70,000/- was recovered from a bag lying in the said room. It is alleged that two bills, including one in the name of Pawan Kumar of Saharanpur, was also recovered from the said bag. The case property was seized and sealed and was deposited in malkhana.
5. On 09.04.2012, SI Vikram Singh in FIR no. 87/2012 reached PS Timarpur and arrested the accused. Thereafter, the disclosure statements of the accused were recorded, however, it is stated that they refused to participate in the Test Identification Parade (TIP). On 18.04.2012, one fifth accused Samsher @ Prince was also arrested and he was identified by Pawan Sethi at PS Kotwali. Subsequently, one more accused, Deepak @ Deepu, was arrested on 23.04.2012, however, he also refused to participate in the TIP.
6. After the conclusion of investigation, charges for an offence under Sections 395/120-B of the IPC were framed against all the six accused; charge under Section 397 of the IPC was framed against the accused Deepak @ Deepu; charges under Section 412/34 of the IPC were framed against the accused Arif, Ajay Saini @ Sunny, Durgesh Chobey and Anil. The accused pleaded not guilty and the matter was set down for trial.
7. Before the Trial Court, fifteen witnesses were examined by the prosecution and six witnesses were examined by the defence.
8. Pawan Sethi, the employer of the complainant and the owner of the shop in question, was examined as PW-4. He deposed that on 03.04.2012, he and his employee Rohit (PW-5) reached the shop at about 5 am. After opening the shop, PW-5 started cleaning it. He testified that for the purposes of buying sarees and lehangas, he was carrying a sum of ₹4.[5] lacs which he had put in the cash box of the shop and had gone to take a bath. Thereafter, he went to the temple and on his return, he found that the shutter of the shop was closed. He lifted the shutter of the shop, wherein he saw Rohit in a very nervous state. He told PW-4 that three/four boys had come to the shop. They had started abusing Rohit and asked about Pawan. Thereafter, one of the said boys tied his mouth with a saree and one other boy threatened him and told him not to raise an alarm. Another boy opened the cash box with the help of a knife and removed the cash amounting to ₹4.[5] lacs, which was lying inside it. He deposed that he alongwith Rohit reached P.P. Ballimaran, however, they both were very nervous due to the incident and as a result, they went back to Saharanpur. Thereafter, both of them came back to Delhi on 07.04.2012 and reported the matter to the police. He deposed that on 18.04.2012, he visited the concerned police post to find out about the progress of the case and on that day, he identified one of the accused, namely Samsher Singh @ Prince. He further deposed that the said accused had worked at his shop for a period of two and a half years and was well aware about his routine of going to temple. He used to reside with PW-4 at Saharanpur while working with PW-4 and also used to come to Delhi with him for purchasing sarees and lehangas.
9. The complainant Rohit Kashyap is the employee of PW-4 and he was examined as PW-5. He deposed that on 03.04.2012, he alongwith his employer Pawan (PW-4) reached the shop and they had brought an amount of ₹4.[5] lakhs along with them. His employer had kept the money in the galla (safe). Thereafter, PW-4 went to take a bath as he had to visit the temple. In the meanwhile, three/four boys entered into the shop and broke open the safe with a knife. They threatened him and told him not to raise an alarm. One of the boys also tied his mouth with a cloth. He deposed that the said boys took away the money kept in the safe. Further, they closed the shutter of the shop and fled. He deposed that he alongwith his employer reported the incident to the police after three/four days, when they returned to Delhi again.
10. In his cross-examination, PW-5 stated that he had been working with PW-4 for eight/nine years. During these years, the other persons who had worked at the shop of Pawan included the accused Ajay Saini @ Sunny and Anil Gautam. He deposed that both the accused had worked with PW-5 at the said shop. He stated that the said fact was not disclosed to the police by him, however, he had disclosed the same to Pawan (PW-4).
11. The Trial Court evaluated the evidence and it observed that there were material inconsistencies in the complaint made by PW-5 Rohit Kashyap (Ex.PW5/A) and his statement before the court. In the complaint, he had stated that they had gone to the police post of PS Kotwali to report the incident, however, they were afraid and perplexed by the alleged incident and thus they (PW-5 and Pawan Sethi) returned to Saharanpur without reporting the matter to the police. Whereas, in his statement before the Court, he did not mention in his chief examination that he along with Pawan Sethi had visited the police post of PS Kotwali or had returned to Saharanpur due to the reason that they were in a perplexed state of mind. Further, in his cross-examination, PW-5 admitted to not having informed the police immediately after the occurrence of the incident. He further admitted that he had not raised an alarm after the occurrence.
12. The Trial Court observed that the the testimony of PW-5 was not credible, as it is hard to believe that the victim or witness to such a crime would not the report the incident with the police even after visiting the police post.
13. SI Vikram Singh, PS Kotwali was examined as PW-15. He deposed that on 03.04.2012, both PW-5 and his employer Pawan Sethi had come to him at the police post in a perplexed state of mind and when he enquired about the facts of the alleged incident from Pawan Sethi, he told PW-15 that he would re-affirm the same from Rohit. Thereafter, they both left the police post and did not come back. While examining the testimony of PW-15, the Trial Court noted that PW-5 in his statement (Ex.PW5/A) did not mention this fact that he along with Pawan Sethi had met SI Vikram Singh. The court further noted that this fact was also not mentioned in the endorsement appended by SI Vikram Singh (Ex.PW15/A) while sending rukka.
14. PW-4 Pawan Sethi is stated to have accompanied PW-5 (his employee) from Saharanpur to Delhi on 03.04.2012 for the purpose of buying sarees and lehangas. They reached PW-4’s shop at about 5 am. According to PW-4, they had opened the shop and Rohit had started cleaning it while he had gone to take a bath. Thereafter, Pawan had left for the temple. As per PW-4’s testimony, he had placed cash amounting to ₹4,50,000/- in the cash box lying at the shop before going for bath. Thereafter, he had returned to the shop to find that the shutter of the shop was pulled down. He lifted the shutter to find PW-5 Rohit there, who was nervous and he then informed PW-4 about the incident.
15. In this regard, the Trial Court observed that in their statements before the Court, PW-4 and PW-5 had stated that the cash to the tune of ₹4,50,000/- was stolen by the accused, however, the said amount was not mentioned by PW-5 in his complaint with the police (Ex.PW5/A). The Court found this to be a material inconsistency since the said amount was also not mentioned by PW-5 after five days of the occurrence of the incident, that is, on 07.04.2012 and thus, it created a doubt as to the prosecution’s version about the alleged incident of robbery of ₹4,50,000/-.
16. On the issue of the arrest of the accused persons and the recovery of the robbed cash, the Trial Court referred to the testimony of PW-8 (HC Suresh, PS Timarpur) and noted that there were contradictions in the deposition made by him during his examination and crossexamination. In his examination-in-chief, PW-8 stated that SI Vikram Dahiya, SI Arun Tyagi and Ct. Gaurav had arrested the accused Arif and Durgesh Chobey, however, on being cross-examined, he had stated that the said accused were arrested by SI Anand. Subsequently, he had met SI Anand near ITI, Dhir Pur Ground, near Burari Chowk and had arrested the said accused in connection with FIR no.70/2012. The Court held that the prosecution did not examine HC Anand to prove as to how and in what circumstances the said accused persons were arrested by them and as to how HC Suresh (PW-8) came to know about their arrest and reached near Burari Chowk, Delhi.
17. The Trial Court also noted the contradictions in the disclosure statement made by the accused Arif and Durgesh and the testimony of HC Suresh as to the recovery of the robbed money. As per the disclosure statements made by the accused Arif and Durhesh Chobey in this case (Ex.PW13/A and Ex.PW13/B respectively), HC Suresh (PW-8) had recovered a sum of ₹3,70,000/- and that he could point out the place of occurrence in Chandni Chowk. They had not offered to the effect of recovery of any amount or any other fact. However, PW-8 in his testimony had stated that the said accused persons had first made their disclosure statements and thereafter had got their co-accused – Ajay Saini and Anil – arrested on the same night at about 12:30 am from a Santro car. Thereafter, according to the testimony of PW-8, they led PW-8 to house no.44, second floor, Yogesh Colony where the accused Ajay Saini opened a room with a key whereas the accused Durgesh picked up a bag containing cash amounting to ₹3,70,000/- and two bills. The testimony of HC Rajesh (PW-13) regarding recovery of money is also similar to that of PW-8.
18. To this end, the Trial Court noted that there were serious contradictions in the aforesaid statements to the effect that the prosecution had failed to prove that the recovery of the robbed amount was made in pursuance to the disclosure statements as stated by HC Suresh and HC Rajesh. It further noted that in the recovery memo (Ex.PW13/F), there was no mention of the fact that the accused Ajay Saini had opened the lock of the room in the said building with a key. Also, no public witness was included in the investigation to authenticate the recovery and no satisfactory explanation had been provided by the prosecution for the same. HC Narain Dass and Ct. Rajesh were the only attesting witnesses to the recovery memo and thus, the court found that this was also a case of non-compliance with the provisions of Section 100(4) of the Cr.P.C.
19. In terms of the case set up by the prosecution, the custody of the accused – Anil, Durgesh, Ajay and Arif – was obtained by SI Vikram Singh (PW15) on 16.04.2012, at the time when they were produced in court. On that date, the accused were produced with muffled faces. However, no record pertaining to the remand proceedings of the said accused persons, in respect of FIR no. 70/2012, was produced before the court. In this regard, the Trial Court held that it was imperative for the prosecution to produce the said record in order for the court to find out as to whether the accused were being produced with muffled faces at the time of their production in FIR no. 70/2012. In the absence of such record, the possibility of the complainant Rohit (PW-5) and his employer Pawan (PW-4) having seen the accused in unmuffled faces could not be ruled out. The court held that in the circumstances, the refusal on the part of the accused to participate in the TIP could not be held adversely against them.
20. It is also stated that the accused Deepak @ Deepu was arrested when he was produced on 23.12.2012, in pursuance to the production warrants. He is stated to have been arrested on the basis of the disclosure statements of the accused Arif and Durgesh, which were made on 08.04.2012. The Court noted that as per the said disclosure statements, no specific role was attributed to the accused Deepak @ Deepu in the alleged robbery.
21. PW-5 Rohit (the complainant) had stated in his crossexamination that he was working with Pawan Sethi (PW-4) for last eight/nine years and the accused Sunny and Anil were amongst the persons, who had worked with him in the past at the shop of PW-4. However, he had not disclosed this fact before the police. The Court noted that in his statement before the police, PW-5 did not name any of the accused but in the court, he identified the accused Anil as the one who had hurled abuses at him and had enquired about PW-4 Pawan Sethi. The Court held that the aforesaid inconsistency again created a doubt as to the version stated by the complainant on the point of the identity of the accused Anil.
22. In light of the aforesaid material inconsistencies and contradictions in the prosecution’s version, the Trial Court held that the prosecution failed to prove its case against the accused (respondents herein) beyond reasonable doubt.
23. The case of the prosecution rests, essentially, on the testimony of two witnesses – PW-4 and PW-5 (Pawan Sethi and Rohit respectively) – and recovery of an amount of ₹3,70,000/- at the instance of the accused (Ajay and Anil).
24. Insofar as the testimony of PW-4 and PW-5 is concerned, there are two aspects that raise serious doubts. First, that there is a significant delay in reporting the incident. It is the prosecution’s case that PW-4 and PW-5 had gone to the police post of PS Kotwali but had not reported the incident at the material time as they were in perplexed state of mind. This explanation inspires little confidence. An incident of robbery had occurred and there is no plausible reason as to why PW-4 – who is otherwise used to dealing with public and several contingencies that carrying on the business present – should have felt so perplexed as to refrain from reporting the incident. Further, even after the incident had been reported four days later, neither PW-4 nor PW-5 had reported the quantum of money that was stated to have been stolen.
25. The second aspect that raises doubt is the failure of PW-4 and PW-5 to identifying the accused. PW-5 had filed a complaint indicating that the robbery was committed by unknown persons. However, in his cross-examination, he stated that Ajay Saini @ Sunny and Anil Gautam had worked with him in the shop owned by Pawan Sethi (PW-4). He also conceded that he had not informed the same to the police. There is no plausible explanation as to why PW-5 should have concealed the identity of the two accused and had given false impression that the incident had been affected by unknown persons. Further, in his crossexamination, PW-5 conceded that he had informed his employer (Pawan Sethi-PW-4) regarding involvement of the two accused. However, PW-4 had also not disclosed the same to the police. This raises serious doubts as to whether the accused identified were, in fact, involved in the alleged incident.
26. As noticed by the trial court, there are also serious doubts regarding recovery of the amount as claimed by the prosecution.
27. The Trial Court had evaluated the evidence and has indicated cogent reasons for concluding that the prosecution had not established its case beyond reasonable doubt. This Court finds no manifest error in the said view. Clearly, the said view is a plausible one and, therefore, this Court finds no reason to interfere with the impugned order.
28. The petition is, accordingly, dismissed. The pending application is also dismissed.
VIBHU BAKHRU, J MARCH 11, 2020 MK