ALLAUDDIN Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) CHALLENGE in these appeals is to a judgment dated 16.05.2011 of learned Additional Sessions Judge in Sessions Case No.1117/09 arising out of FIR No.452/08 registered at Police Station Ashok Vihar by which Allauddin (A -1) and Tinku @ Danish (A -4) were convicted under Section 392 IPC; Kuldeep Singh @ Kalli (A -2) and Mahender @ Dharmender (A -3) were held guilty under Section 392 read with Section 397 IPC. By an order on sentence dated 25.05.2011, A -1 and A -4 were awarded RI for four years with fine Rs.500/ - each; and A -2 and A -3 were awarded RI for seven years with fine Rs.500/ - each.

(2.) ALLEGATIONS against the appellants were that on 29.10.2008 at about 1.30 p.m., at Jhalkari Bai School (Sarvodya School) Wazipur, JJ Colony, they in furtherance of common intention while armed with deadly weapons committed robbery and deprived Ramesh Rs.150/ -; Rakesh Rs.500/ - and mobile phone; Hira Rs.60/ -; and Mukesh Rs.30/ -. Daily Diary (DD) No.19 (Ex.PW -2/A) was recorded at 01.50 p.m. on getting information about the incident. Investigation was assigned to ASI Dev Raj who with Ct.Surender went to the spot. The investigating officer recorded Ramesh's statement (Ex.PW -3/A) and lodged First Information Report under Section 392/34 IPC. Further case of the prosecution is that at the pointing out of the complainant, A -1, A -2 and A -4 were arrested and part of the robbed cash, mobile phone and knife were recovered from their possession on the same day in the evening. On 04.11.2008, A -3 was arrested. Statement of witnesses conversant with the facts were recorded. After completion of investigation, a charge -sheet was submitted against all the accused persons; they were duly charged and brought to trial. The prosecution examined eight witnesses to substantiate the charge. In 313 statements, the accused persons denied their complicity in the crime; Crl.A.No.1038/2013 & connected appeals Page 3 of 10 pleaded false implication and examined DW -1 (Ramesh Kaur) in defence. On appreciating the evidence and after considering the rival contentions of the parties, the trial court, by the impugned judgment held them guilty for committing offences mentioned previously. Being aggrieved and dissatisfied, they have preferred the appeals.

(3.) IN statement (Ex.PW -3/A) given to the police at the first instance, Ramesh revealed that the two assailants pointed knives at them and commanded to hand over whatever they had. Due to fear, they stood on one side and the assailant who was unarmed removed mobile from his brother Rakesh and his companion took out Rs.150/ - from his pocket and Rs.500/ - from the pocket of his brother Rakesh. The assailant who had snatched mobile from Rakesh had a long scar/cut mark on cheek. He further disclosed that when his brothers Mukesh and Hira came out of their room, the assailant who had an iron rod took out cash from their pockets. Thereafter, the four assailants fled the spot. The complainant in its complaint did not describe broad features/description of the three assailants. He also did not reveal as to what cash was taken out from Hira and Mukesh. While appearing as PW -3, Ramesh made vital improvements in his deposition and deposed that one of the assailants who had a knife, put it on his stomach and threatened them to hand over all their belongings and cash. He identified A -1 as the boy who snatched mobile and money from him and his brother. He also recognized A -4 who had a knife and had put it on his stomach. He identified A -3 the other assailant who had a knife. He identified A -2 as the assailant who was standing on one side and threatening them not to raise alarm. PW -3 did not reveal if any of the assailants was armed with any iron rod. He did not identify A -1 as the assailant who had an iron rod in his possession. He did not specify as to which of the assailants had removed the mobile and cash from each of them. He did not identify any specific assailant who had a long cut mark on his cheek. In Court observation, A -1 was found to have an old cut mark on the left side of his temple. In the statement (Ex.PW3/A), Ramesh attributed specific role to the assailant (A -1) who was unarmed and took out mobile from Rakesh. As per the prosecution, A -1 was armed with an iron rod. So there was mis -match in the testimony of the witnesses as to which of the assailants had snatched mobile phone from Rakesh. PW -4 (Rakesh) has given inconsistent and conflicting statement. He identified A -2 to be the assailant who had a knife and accused A -4 for snatching the mobile. He deposed that A -1 was having an iron rod. He did not assign any role to A -3 in the incident. He did not depose if he had a knife in his possession or had extended threats to them. PW -4 is silent as to which of the assailants had taken out the robbed articles from them. He deposed that the person who was without any weapon snatched his mobile. He further deposed that one of the boys, who had a knife, put it on his back. He did not elaborate as to who had snatched cash from Hira and Mukesh. Apparently, the version narrated by this witness is inconsistent with the one given by PW -3 (Ramesh).