SURINDER KUMAR @ NANHE Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) Surinder Kumar @ Nanhe and Harish @ Kale (the appellants) impugn a judgment dated 13.07.2011 of learned Additional Sessions Judge in Sessions Case No. 881/2007 arising out of FIR No. 637/2007 PS Nangloi by which they were held guilty for committing offence punishable under Section 392 read with Section 397/34 IPC. By an order dated 20.07.2011, they were sentenced to undergo RI for seven years with fine Rs. 2,000/- each.

(2.) Allegations against the appellants were that on the night intervening 6/7.08.2007 at 01.30 A.M. near Abhinandan Vatika, Main Rohtak Road, Delhi, they with their associates Davender, Bijender Lochab, Rohan Arora (since expired) robbed Const. Shri Kishan of his mobile phone, motorcycle and a purse containing cash and I-card. Harish @ Kale and Surinder Kumar @ Nanhe were armed with country made pistols and used them while committing robbery. Subsequently, they were also found in possession of motorcycle made Bajaj Discover bearing No. DL-4-SAY 7916 which they received or retained knowing or having reasons to believe the same to be a stolen property. Bijender was also charged under Section 411 IPC being in possession of stolen mobile make Nokia-6600. The Investigating Officer lodged First Information Report after recording Shri Kishan's statement (Ex.PW-2/A). During the course of investigation, the assailants were apprehended and from their possession country made pistols were recovered. The Investigating Officer recorded statements of the witnesses conversant with the facts. On completion of investigation, a charge-sheet was filed against all of them including Ajit @ Master who was found in possession of Santro Car No. DL-8CG-4984 used in the crime. The prosecution examined thirteen witnesses to prove its case. In their 313 statements, the accused persons pleaded false implication. On appreciating the evidence and considering the rival contentions of the parties, the Trial Court, by the impugned judgment, convicted both the appellants. Being aggrieved, they have preferred the appeals.

(3.) I have heard the learned Addl. Public Prosecutor and appellants' counsel and have examined the Trial Court record. Rohan Arora expired during the trial and proceedings against him were dropped as abated. Ajit @ Master was discharged vide order dated 28.02.2008. Court's observations in the said discharge order are relevant to note. The prosecution had alleged that after their arrest, the five assailants arrested on 09.08.2007 led the police party to Jhajjar, and got apprehended Ajit @ Master who was found in possession of Santro Car No. DL-8CG-4984. Ajit @ Master also recovered leather purse and I-card of the complainant - Shri Kishan. It was pointed out by the defence counsel that newspaper report recorded that the five assailants apprehended on 09.08.2007 had got recovered Santro Car, Bajaj Discovery Motorcycle, Nokia Phone, Uniform and I-card of Const. Shri Kishan. If that be so, the recoveries from Ajit @ Master were doubtful. Recovery memo dated 19.08.2007 regarding police uniform, name plate, barret cap of Const.Shri Kishan was false. Presence of all the five accused persons at Jhajjar for the arrest of Ajit was doubtful at 06.15 P.M. The Trial Court agreed with defence pleas and doubted Ajit's apprehension at the instance of co-accused persons and recovery of Santro Car and I-card etc. from his possession on the alleged date. Accordingly, Ajit @ Master was discharged. The accused persons were acquitted of the charge under Section 411 IPC regarding recovery of I-card, leather purse, police uniform, name plate and barret cap. It is significant to note that State did not challenge the discharge order and it attained finality. The prosecution did not explain the discrepancies and defects in the prosecution case as noticed in the discharge order which caused dent in the version narrated by the police in the charge-sheet.