GANGESHWAR Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) By these appeals, the Appellants lay a challenge to the common impugned judgment dated 9 th June, 2000 convicting the Appellants for the offence punishable under Section 395 IPC and the Appellant Gangeshwar for Section 397 IPC as well and the order on sentence dated 12 th June, 2000 whereby both the Appellant have been directed to undergo Rigorous Imprisonment for a period of five years and to pay a fine of Rs. 1,000/- each for offence under Section 395 IPC and in default of payment of fine to further undergo Rigorous Imprisonment for a period of three months each. Further the Appellant Gangeshwar has been directed to undergo Rigorous Imprisonment for a period of seven years for offence punishable under Section 397 IPC.

(2.) Learned counsel for the Appellant Gangeshwar contends that there are contradictions in the testimony of PW1 Alka Jain. On one hand she states that she can identify the four persons who entered her house and on the other hand she states that the faces of the persons were covered by the handkerchief. The Appellants refused to undergo TIP as admittedly they were shown to the witnesses in the police station on the next morning after the incident. Thus even the learned Trial Court returned the finding that since the accused persons were shown in the police station, no adverse inference for refusal of TIP can be drawn against them. PW5 the only independent witness purported to be the witness of recovery, has not supported the prosecution case. In his cross-examination he has stated that the police only took his signatures on written and blank papers and he had not joined the investigation. Admittedly at the place of the alleged incident, a factory was being run on the ground floor and part of the first floor and on the remaining part of the first floor, the family of the Complainant was residing. It is stated that five-six persons were there on the ground floor in the factory. Further the area is thickly populated and despite this fact nobody came forward to help nor has any independent witness been joined. No charge under the Arms Act was framed. Learned Trial Court returned the finding that the recovery was not reliable. It further held that all the accused persons were arrested on 8 th January, 1987, however, they were shown to be arrested on 10 th January, 1987 at the instance of Joginder Singh and thus in view of this fabricated evidence, the police officer s testimony was not reliable. The learned Trial Court in fact initiated proceedings under Section 340 Cr.P.C. against the Investigating Officer. Reliance is placed on Raj Kumar @ Raju vs. State of Uttaranchal, 2008 3 RCR(Cri) 602; Dilawar Singh vs. State of Delhi, 2007 10 JT 585; Rampal Pithwa Rahidass and others vs. State of Maharsthra, 1994 CrLJ 2320; State of Rajasthan vs. Netrapal and others, 2007 CrLJ 1783; Atar Singh vs. State of U.P., 2003 CrLJ 676; Mohan Girdhar Singh vs. State of Maharashtra, 2007 CrLJ 3854; Balik Ram vs. State, 1983 CrLJ 1438; Rafikul Alam and others vs. State of West Bengal, 2008 CrLJ 2005; Raja vs. State, 1986 CrLJ 285; Kishan Pandit and others vs. Govt of NCT of Delhi, 2009 5 AD(Del) 622; German Singh and others vs. State of Punjab, 2005 1 RCR(Cri) 817; Parlhad vs. State of Haryana,2007 3 RCR 387; Willson Abraham Chouriappa vs. State of Maharasthra, 1995 CrLJ 4042; Karan alias Baasha Shyam Pawar vs. State of Maharashtra, 2007 CrLJ 2573, Manik Shankarrao Dhotre and ors vs. State of Mahrashtra, 2008 CrLJ 1505and Shambu and Anr. vs. State of Himachal Pradesh,2007 CrLJ 3818.

(3.) On behalf of the Appellant Joginder it is contended that the Appellant was the servant of the Complainant. It is the case of the Complainant herself that they were watching television and somebody knocked the door. Since it was the duty of the Appellant to open the door, he went and opened the door. When he came after some time he informed that his uncle had come. Inadvertently as the door was not locked again, the Appellant Joginder has been held to be a part of the gang which committed the dacoity at the house of the Complainant. It is contended that the conduct of the Appellant Joginder was a normal conduct. He even informed that his uncle Ashok had come and merely because he forgot to lock the door and after about 10-15 minutes few persons came in the house, it cannot be said that the Appellant committed the offence with the co-accused. The conduct of the Appellant at best raises suspicion and does not prove the guilt beyond reasonable doubt to convict him for the offence under Section 395 IPC.