RAM MURTI Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) These two appeals under Section 374 of Criminal Procedure Code have been preferred by the appellants against a common judgment dated 12th November 2003 and order of sentence dated 15th November 2003 passed by learned Additional Sessions Judge, Delhi whereby the appellants were convicted under Section 392 read with section 34 IPC and sentenced to undergo imprisonment for five years with fine of Rs.1000/-. Appellant Ram Murti was also convicted under Section 411 and was sentenced to undergo imprisonment for a period of one year.

(2.) Brief facts relevant for the purpose of deciding these appeals are that one Shahana lodged a report with police on 28th August, 1997 that she was a divorcee and was living at house no.6, East Azad Nagar, Delhi with her family. She was a housewife having one daughter. On the day of incident, her sister Shahnaz, who lived in Gali No.15, West Azad Nagar, Delhi, had come with her son Shanu. While they were at the house, at about 10.30 pm a tall boy aged around 20-25 years entered their house since the door of the house was lying open. Behind him, there were three more persons, one of them was a Sikh aged around 30/35 years. One was having beard and was wearing a cap. The Sikh person took out a pistol and threatened that whatever was there in the house should be handed over. They searched the house and took from them one chain with Sai Baba pendent, four bangles, seven rings and Rs.5,000/- cash. While leaving, they also took away one VCP Panasonic, one two in one make Sony, three phone instruments, two watches and one camera make Minolta, two gold bangles of her sister and left at around 12.30 am in the night. Her sister 's son Shanu had also seen them at the time of incident.

(3.) The incident of this robbery had allegedly taken place on 28th August, 1997. It is the case of the prosecution that a call was received about a robbery on wireless at police station Krishna Nagar. The statement by the complainant Shana was also made on the same night. Surprisingly, no FIR was registered on the basis of statement of Shana on 28th August, 1997. The testimony of investigating officer shows that though Shana had made a statement but it was kept pending and no FIR was registered. He has not clarified as to why FIR was not registered on 28th August 1997 itself despite a report was made regarding commission of a heinous offence of robbery to the police. DD No.4A placed on record and proved as Ex.PW10/A is in respect of a PCR report received at the police station at 2.20 am in the night which shows that the wireless operator had given an information that at Gali No.6, House No.107/64, East Azad Nagar, Delhi, a dacoity had taken place and SI Gagan Deep was sent to the spot. SI Gagandeep is examined as PW-10. He had testified that he received DD No.4A through duty officer and proceeded to house no.107/64, Gali No.6 where the complainant gave him a statement Ex.PW1/A regarding a dacoity. He stated that he kept the statement pending and did not get an FIR registered. This is despite the fact that SHO and ACP had also arrived at the spot and he had narrated all the facts to them. He further submitted that an inquiry was made and it was opined that the incident did take place so an FIR should be registered. Thus on 9th September 1997, he made endorsement on the statement made by the complainant and got an FIR registered. There is no explanation as to what inquiry was made between 28th August, 1997 and 9th September 1997 and why the case was considered worth registering an FIR on 9th September 1997 and not before that. The arrest of accused persons was done in this case in a very strange manner. Inspector Rakesh Dixit PW-9 deposed that on 1st October 1997 he was posted at Special Staff as SI, South District. Krishna Nagar, falls in East District while he was posted in South District and he received a secret information about two persons standing at the bus stand with stolen property which they were trying to sell. So he went to the spot and apprehended the two persons - one was Ram Murty and other was Parvinder Singh and he found that Ram Murty was having two telephone instruments in a polythene bag and Parminder was having one camera make Minolta in the right pocket of his pant and both of them disclosed that these were stolen properties. He apprehended them and got a case registered against them at police station Malviya Nagar. He recorded disclosure statements and learnt from their disclosure that these persons were involved in a dacoity and he informed police of police station Krishna Nagar. Both were asked to undergo TIP but they took a stand that they had been shown to the complainant and they refused to undergo TIP. The third accused was arrested in this case by PW-7 SI Veer Singh. He also received information from Special Staff, West District about arrest of one person wanted in this dacoity case viz Kulwant Singh, so he moved an application for his production warrants and arrested him in this case also. No recovery was affected from accused Kulwant Singh despite his police remand. TIP was refused by Kulwant Singh also on the ground that he had been shown to the witness. The fourth accused Amardeep was arrested by special staff East District in some other case and he made a disclosure statement about his involvement in this case and he was thereafter arrested by the investigating officer in this case. However, testimony of PW-10 is silent about arrest of accused Amardeep. He stated that the remaining investigation was handed over to SI Veer Singh. However, PW-7 SI Veer Singh has not stated anything about arrest of this fourth accused Amardeep by him and he states that investigation was handed over to him on 24th October 1997.