SAFEEQ Vs. STATE OF NCT OF DELHI

JUDGEMENT

(1.) Ramesh @ Safeeq (A-1) and Javed (A-2) challenge the legality and correctness of a judgment dated 23.02.2012 of learned Addl. Sessions Judge in Sessions Case No. 72/10 arising out of FIR No. 167/10 PS Karawal Nagar, by which A-1 was convicted under Sections 392/397/34 IPC and 25 Arms Act; A-2 was held guilty under Section 392/34 IPC. By an order dated 29.02.2012, A-1 was sentenced to undergo RI for eight years with fine Rs. 40,000/- under Sections 392/397 IPC and RI for two years with fine Rs. 10,000/- under Section 25 Arms Act; A-2 was awarded RI for seven years with fine Rs. 25,000/-. The sentences were to operate concurrently.

(2.) Shorn of details, the prosecution case as reflected in the charge-sheet was that on 02.07.2010 at about 07.00 A.M. at Rama Garden, Karawal Nagar, the appellants in furtherance of common intention robbed Ramu after administering stupefying substance of 113 bags of almonds belonging to complainant Matadin, loaded for transportation to Khari Baoli in a tempo bearing No.HR-38E-3500 at pistol point. Ramu was a driver and A-1 a helper in the tempo. When the tempo did not reach its destination, Madadin lodged complaint (Ex.PW 1/A). The Investigating Officer lodged First Information Report for commission of offence under Section 407 IPC. The investigation was taken over by SI Chetan Singh. On 03.07.2010, Ramu was found lying unconscious at Sahibabad and was brought at PS Karawal Nagar and taken for medical examination. After recording Ramu's statement under Section 161 Cr.P.C. Sections 392/397/34 IPC were added. On 18.08.2010, on receipt of secret information vide Daily Diary (DD) No.20 (Ex.PW-16/A), A-2 was arrested from Dusra Pusta, Usmanpur and pursuant to his disclosure statement, 65 bags of almonds were recovered from his rented accommodation. He recovered seven more bags of almonds on 20.08.2010 from the house of his landlord Rohtas. Recovery of Rs. 48,000/- being sale proceeds of robbed almonds was effected. On 23.08.2010 at 04.30 P.M. on the basis of secret information vide Daily Diary (DD) No.12 (Ex.PW-16/E), A-1 was arrested from Khajuri Khas and he recovered 50 kg bags of almonds from the house of his landlord Dheeraj at Khajuri Khas. A country-made pistol and two live cartridges were also seized from his residence. During investigation, statements of the witnesses conversant with the facts were recorded. The exhibits were sent to Forensic Science Laboratory. After completion of investigation, a charge-sheet under Sections 407/328/392/397/411/34 IPC and 25 Arms Act was submitted in the Court against the accused; they were duly charged and brought to trial. The prosecution examined nineteen witnesses in all. In 313 statements, the accused persons pleaded false implication and denied their complicity in the crime without examining any witness in defence. The trial resulted in their conviction as aforesaid. Being aggrieved, the appellants have challenged the conviction. It is pertinent to note that State did not challenge the appellants' acquittal under Sections 407/328 IPC.

(3.) I have heard the learned counsel for the parties and have examined the record. It is not in dispute that on 02.07.2010, 113 bags of almonds were loaded in a tempo bearing No.HR-38E-3500 driven by PW- 8 (Ramu); A-1 was a helper / conductor in the tempo. PW-6 (Matadin), the complainant, deposed that on 02.07.2010 Ramu informed him after loading the goods in the tempo that he had started from Karawal Nagar for Khari Baoli. When the tempo did not reach Khari Baoli, he lodged First Information Report (Ex.PW-1/A) at PS Karawal Nagar. PW-12 (Akshay Kumar Bhatia), PW-13 (Raju Bhatia) and PW-17 (Rakesh Bhatia) have given consistent version that on 02.07.2010, PW-11 (Sheetal) made a telephone call to them and apprised that the tempo containing cracked almonds was missing on the way to Khari Baoli.