VISHAL Vs. STATE OF NCT OF DELHI

JUDGEMENT

(1.) VISHAL (the appellant) seeks to question his conviction for offences under Section 392 read with Section 397 IPC and 27 Arms Act by a judgment dated 04.08.2010 in Sessions Case No. 56/10 arising out of FIR No. 128/10 PS Sarai Rohilla. By an order on sentence dated 07.08.2010, he was awarded RI for seven years under Section 392 IPC read with Section 397 IPC and SI for three years under Section 27 Arms Act. The factual matrix from which the appeal germinates is as under :

(2.) ON 21.04.2010 at about 12.15 P.M. Surender Kumar boarded a private bus No. 3553 on route no. 231 from Daya Basti to go Deputy Ganj Market to purchase a dinner set for the marriage of his daughter. He had Rs. 16,500/ - in his pocket. He was robbed of Rs. 16,500/ - by four assailants in the heavily crowded bus. On raising alarm, the assailants alighted from the bus and were chased by the complainant. He was able to apprehend the appellant who attempted to resist by taking out a buttandar knife out of his possession. The complainant overpowered him and informed the police. The Investigating Officer lodged First Information Report after recording his statement (Ex.PW -1/A). Efforts were made to find out the appellants associates but in vain. Statements of the witnesses conversant with the facts were recorded and after completion of the investigation, a charge -sheet was filed against the appellant, in which he was duly charged and brought to trial. The prosecution in all examined six witnesses. In 313 statement, the appellant denied complicity in the crime and alleged false implication. The trial resulted in his conviction as aforesaid.

(3.) THE complainant in his earliest version given to the police in his statement (Ex.PW -1/A) disclosed that when he raised alarm in the bus, four assailants alighted and started fleeing the spot. He was able to apprehend one of the assailants who took out a knife. The said boy was overpowered and a buttandar knife was snatched from his right hand. The words ,,khuli halat mei seems to have been inserted subsequently in the statement (Ex.PW -1/A). The complainant did not describe the features of the other associates / companions of the appellant who had pushed him in the bus and had robbed him of cash Rs. 16,500/ -. In his Court statement as PW -1, the complainant did not attribute any specific role to the each assailants and in vague terms disclosed that the ,,four individuals pushed him and asked him to keep hands up on the pretext of rush in the bus. He vaguely stated that they ,,forcibly took out Rs. 16,500/ - from the inner pocket of his wearing pant. He did not describe as to what force was used and in what manner the currency lying in his inner pocket were taken out by any specific individual. No specific and definite role was attributed to the appellant in depriving him of cash from his pocket. The appellant was not apprehended while taking out the currency notes from the pocket of the complainant. It is unclear as to when and at what place the bus stopped and the four assailants alighted from the bus. Driver and conductor or any other passenger in the bus was not associated at the time of conducting search of the accused. After his apprehension, no instrument to pick - pocket was recovered from his possession. The appellant who was allegedly armed with a deadly weapon did not use it to avoid his apprehension. No injuries with knife were inflicted to the complainant or the public giving beatings to him. The complainant himself disclosed that after that the appellant was taken to Murga market, he was made to sit there. He did not attempt to abscond from there. Mere presence of the complainant inside the bus without any specific / overt act attributed to him is not enough to prove or establish his guilt particularly when no robbed article was recovered from his possession. It is true that PW -1 (Surender Kumar) had no ulterior motive to falsely implicate the accused with whom he had no prior animosity. But possibility of mistaken identity cannot be ruled out. There were four individuals who allegedly were instrumental in committing the crime. The police was unable to ascertain the nexus of the present appellant with the other three who fled the spot. Sole testimony of the complainant is not safe to convict the appellant in the absence of any corroboration in the light of various discrepancies and infirmities in the prosecution case. Delay in lodging the FIR has not been explained.