(1.) The appellant-Dharmendra challenges a judgment dated 01.11.2010 in Sessions Case No.140/2007 arising out of FIR No.111/2007 registered at Police Station Nangloi by which he was convicted under Section 393/308 IPC and sentenced to undergo Rigorous Imprisonment for five years under Section 393 IPC and Rigorous Imprisonment for three years under Section 308 IPC with fine Rs. 10,000/-
(2.) Allegations against the appellant were that on 08.02.2007 at about 03.00 A.M. he and his associates Munna Khan (since P.O.), Kalia, Subodh and Chotu (not arrested) committed trespass in a godown at Todar Mal Chowk, Mundka in occupation of Cadila Health Care Limited. Ram Avtar was Chowkidar at the said godown. After finding the assailants in the godown, he came out of his cabin and inquired from them as to who they were. The assailants were armed with knives and saria. They asked Ram Avtar not to raise alarm or else he would be killed. He raised an alarm. Public persons from the neighbourhood gathered there. The assailants gave beatings and injured him. They attempted to escape from the spot. Dharmendra and Munna Khan were apprehended after some chase and their associates succeeded to flee. The police was informed and their custody was handed over to the Investigating Officer along with the knives left at the spot. Necessary proceedings were conducted at the spot. The injured was taken to hospital and medically examined. The Investigating Officer lodged First Information Report and recorded the statement of the witnesses conversant with the facts. Pursuant to Munna's disclosure statement, a country made pistol with cartridge was recovered. After completion of investigation both Dharmendra and Munna Khan were sent for trial for committing offences punishable under Sections 392/394/395/397/398/34 IPC and under Section 25 Arms Act. Vide orders dated 29.08.2007, they were charged for committing offences punishable under Section 395/398/308/34 IPC and Section 25 Arms Act. The prosecution examined 12 witnesses to substantiate the charges. During trial, Munna Khan absconded and finally declared Proclaimed Offender. In his 313 statement, Dharmendra pleaded false implication. On appreciating the evidence and after considering the various contentions raised by the parties, the Trial Court, by the impugned judgment held Dharmendra guilty for committing offences under Section 393/308 IPC only. It is relevant to note that the State did not file any appeal to challenge appellant's acquittal under Section 395/398 IPC and 25 Arms Act.
(3.) I have examined the relevant materials. It reveals that major discrepancies and contradictions have emerged in prosecution case regarding the exact number of assailants and how and in what manner Dharmendra and Munna Khan were apprehended etc. Complainant-Ram Avtar in his statement (Ex.PW-1/A) had given the exact number of assailants i.e. four. However, after conclusion of investigation, the police charge-sheeted five individuals. As per the prosecution, Dharmendra and Munna Khan were apprehended at the spot and the other assailants succeeded to flee. It is unclear how the investigating agency ascertained that assailants/intruders were five in number as the identity of Kalia, Subodh and Chotu could not be ascertained and established. It is not certain how and from where the police came to know their names. Their addresses could not be ascertained/found during investigation. The Trial court for valid reasons did not believe the prosecution's case and rightly concluded that it was not a case of 'dacoity'. During examination, Ram Avtar was not sure how many assailants had committed trespass. He merely deposed that he saw four-five boys who had entered in the godown by jumping the wall/gate.