NAEEM Vs. STATE

JUDGEMENT

(1.) By the present appeal the Appellant lays a challenge to the judgment dated 11 th March, 2010 whereby the Appellant and the co-accused Javed were convicted for offences punishable under Sections 394/397/34 IPC and the order on sentence dated 17 th March, 2010 directing them to undergo Rigorous Imprisonment for a period of seven years and a fine of Rs. 3,000/- each for offences punishable under Sections 397/34 IPC and 394/34 IPC. The amount of fine is stated to have been paid. No appeal has been filed by co-accused Javed.

(2.) The brief facts of the prosecution case are that on 5 th January, 2007 an information was received vide DD No. 27 that three/four persons have committed robbery in a house bearing number T-187, Gali No. 2 near Gautam Puri, Delhi and have run away from the spot. On receipt of the information ASI Jawahar Singh along with Const. Khushi Ram reached the place of occurrence of offence and recorded the statement of Ram Niwas. Amar Pal, the tenant of Ram Niwas living on the ground floor also claimed to have been robbed by the said persons. On the basis of the statement, a case was registered and investigation was initiated. The MLC of the complainant and injured Amar Pal was also obtained. The Appellant was arrested on 16 th January, 2007 on the basis of secret information and a country made pistol .315 bore loaded with live cartridges was recovered from the right side dub of his pant. Pursuant to the disclosure of the Appellant a pair of kundal was also recovered from the drawer of his dressing table. The Appellant disclosed the identity of co-accused Javed @ Bhura and Jakir. At the time of TIP, the Appellant refused to participate. Thus, the TIP of the recovered kundals only was conducted which were correctly identified by PW-2. The co-accused Javed @ Bhura was arrested by PW-13 on 12 th June, 2007 in another case wherein he made disclosure about the commission of offence in the present case. Third accused Jakir however could not be apprehended. Charges were framed and trial was conducted. The Appellant and co-accused Javed were convicted under Section 394/397/34 IPC. Hence the present appeal.

(3.) The learned Counsel for the Appellant contends that the prosecution story is made up of concocted facts and the learned Additional Sessions Judge failed to consider the submissions of the defence Counsel at the time of deciding the case. PW1 Ram Niwas in his testimony has stated that accused took Rs. 2,000/- from his pant hanging in the room while in his statement to the police Ex.PW-1/A he stated that money was taken from the alimrah. Both PW-3 residing on the ground floor and PW-1 and PW-2 living on the first floor depose that the incident took place at 9.30 PM, which is not possible, as the same could not have taken place simultaneously at both the places. Learned Counsel states that PW-3 in his examination in chief stated that the accused had slapped him however this has not been stated in the statement recorded by the Police during investigation. TIP was refused by the Appellant because the PWs had seen him and the co-accused in the police station. PW-1 has admitted the fact that PW-2, his wife had seen both the Appellant and co-accused Javed in the police station. PW-6A Ct. Pradeep Kumar states that a country made katta was recovered from the right side pocket of the trouser of the accused while PW-11 SI Jawahar Singh in his examination in chief states that the katta was recovered from the right side dub of his wearing pant. No steps have been taken by PW1 or PW2 to take back the recovered kundals. He states that even though PW-1 and PW-3 live in the same house, PW-1 states that he heard no alarm whereas PW-3 categorically stated that he had raised an alarm. Thus there are material contradictions in the testimonies of the witnesses and therefore the conviction should be set aside.