SHER SINGH Vs. STATE OF DELHI

JUDGEMENT

(1.) The charge against this appellant Sher Singh Shera is that on 20/5/1984 at 4.30 a.m., in Janta Jayanti Express train, between Gandhi Dham and Delhi Railway Station, he in furtherance of common intention with the other co-accused robbed Alok Verma, the complainant, at the point of knife and took away his wrist watch, purse containing Rs. 400.00, railway ticket and one VIP bag containing his clothes and a personal diary by putting him in fear of instant death or instant hurt. He was charged with an offence punishable under section 392/34 read with section 39/, I.P.C. He pleaded not guilty to the said charge and claimed trial.

(2.) During the trial, the prosecution examined as many as nine witnesses including the complainant Alok Verma in support of its version. The defence taken by the appellant in his statement under section 313, Cr. P.C. is that of denial. According to him he is innocent and has been falsely implicated in this case. However, he did not lead any evidence in his defence.

(3.) The main points raised by the appellant in this appeal are that the robbery, is alleged to have taken place in a second class railway compartment (sleeper) where other passengers were present but no other person from that coach, except the complainant has been, examined as a witness. In the absence of evidence of an independent person, the conviction on the sole testimony of the complainant is bad. According to him, he was not apprehended on the spot and his arrest on the basis of some documents alleged to have been recovered from a bag allegedly left by him in the railway compartment after committing robbery is doubtful. His refusal to participate in the identification parade is justified because he was shown to the witness Alok Verma earlier. No presumption can be drawn against him on his refusal to participate in the identification parade. It has also been pointed out that no recovery has been made at his instance of the robbed property. In the absence of any cogent evidence against him, non recovery of the robbed property from him, showing him to the complainant before he was asked to participate in the parade, he cannot be convicted in this case only on account of his past criminal history. Evidence on record is full of contradictories and improbabilities. As per the prosecution version, one of the co-accused had demanded the purse from the complainant and later on that accused asked his accomplice to take out the knife. When the complainant did not resist in handing over the purse, there was no occasion for taking out the knife and using the same for committing robbery. The theory of giving first blow on the eye of the complainant is also contradictory to the facts available on record. When there was no resistance, question of giving first blow could not have arisen. In the absence of recovery of knife and the robbed property the connection of the appellant with the incident is ruled out. The alleged railway ticket shown in the name of the appellant and the fine receipt in the mime of the appellant were planted later on just to implicate the appellant in this case. The genuineness of the fine receipt and the thumb impression on its back could not have been proved as the register of summary trial of Railway Magistrate Jaipur was not produced. The disclosure statement allegedly made by the appellant and the co-accused cannot be used against him as no recovery was made on the basis of the disclosure statement. This disclosure statement is hit by section 25 of the Indian Evidence Act.