MOHD. SAMIM Vs. STATE (GOVT. OF NCT) DELHI

JUDGEMENT

(1.) Challenge in this appeal is to a judgment dated 25.08.2011 of learned Addl. Sessions Judge in Sessions Case No. 19/10 arising out of FIR No. 365/08 PS Patel Nagar by which the appellant Mohd. Samim was held guilty for committing offences punishable under Sections 394/397/34 IPC and 27 Arms Act. By an order dated 27.08.2011, he was awarded RI for seven years under Section 397 IPC; RI for seven years with fine Rs. 1,000/- under Section 394 IPC and RI for four years with fine Rs. 500/- under Section 27 Arms Act. All these sentences were to operate concurrently.

(2.) The prosecution case as projected in the charge-sheet was that on 03.09.2008 at about 07.15 A.M. at house no. C-5, DDA Flat, New Ranjit Nagar, Delhi, the appellant in furtherance of common intention with his associates (since absconding) robbed Payal, Nitu and Ram Narayan and deprived them of Rs. 40,000/-, jewellery articles, mobile phones. It was further alleged that while committing robbery, the appellant and his associates were armed with 'deadly' weapons and they inflicted injuries to Ram Narayan. Police came into motion when information about a 'quarrel' was conveyed and Daily Diary (DD) No. 9 (Ex.PW-11/A) was recorded at 07.52 A.M. at PP New Ranjit Nagar. The investigation was assigned to HC Sansar Pal. The Investigating Officer, after recording Nitu's statement (Ex.PW-3/A), lodged First Information Report. Statements of the witnesses conversant with the facts were recorded. During investigation, exhibits were sent to Forensic Science Laboratory for examination. After completion of investigation, a chargesheet was filed against the appellant Mohd. Samim; he was duly charged and brought to trial. The prosecution examined twelve witnesses to establish his guilt. In 313 statement, the accused denied his complicity in the crime and pleaded false implication. He further stated that when he had gone to the complainant to demand Rs. 3,000/- for the white-wash done by him; he was beaten and falsely implicated. He, however, did not prefer to lead any evidence in defence. Being aggrieved and dissatisfied, the appeal has been preferred.

(3.) I have heard the learned counsel for the parties and have examined the record. It is relevant to note that the investigation agency during investigation was unable to identify and arrest the alleged associates of the appellant who had joined him for committing robbery. The police did not establish the 'particulars' of the said assailants. The complainant and other eye witnesses relied upon by the prosecution did not give their broad features / description. No investigation was carried out as to how and since when, the appellant was in association with those assailants and from where they had procured the 'deadly' weapons. Only the appellant was apprehended at the spot. No robbed article was recovered from his possession. At the time of his apprehension, he was also not in possession of any 'deadly' weapon. It has come on record that he had sustained injuries on his body; was taken to DDU hospital at around 08.46 A.M. and was medically examined vide MLC (Ex.PW-7/A). It is not clear as to who had taken him to the Emergency Department, DDU hospital as the name of said person does not find mention therein. Nature of injuries sustained by him was ascertained 'simple' caused by blunt object. Daily Diary (DD) No. 9 (Ex.PW-11/A) recorded at 07.52 A.M. pertains to a 'quarrel' at C-5, DDA Flat, New Ranjit Nagar, Delhi. The prosecution did not examine PCR officials to find out as to when the PCR van arrived at the spot and the patient was taken to DDU hospital. PW-11 (HC Sansar Pal) deposed that the injured was shifted to hospital by PCR van along with Const. Promod. The prosecution did not, however, examine Const. Promod and his name does not find mention in the MLC. PW-12 (Insp.Babu Lal) claimed that on receipt of DD No. 9 (Ex.PW- 11/A) he along with HC Sansar Pal and Const. Promod went to the spot. He, however, did not mention if the injured was found present at the spot. Contrary to that, he deposed that the assailant who had sustained injuries had already been taken to DDU hospital by PCR. Apparently, the police officials have not given correct version as to when and by whom the appellant was taken to DDU hospital. It belies the statement of the complainant that the injured was handed over to the police on their arrival.