SHASHANK Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) The present appeal has been filed under Sec. 374(2) read with Sec. 382 Cr.P.C. against the judgment dtd. 21/11/2015 and order on sentence dtd. 16/12/2015 passed by learned ASJ-04 (Central), Tis Hazari Courts, Delhi, in SC No. 27/2014 arising out of FIR No. 195/2011 registered under Ss. 328/379 IPC at P.S. Kashmere Gate.

(2.) The prosecution case, as presented before the Trial Court, is that the complainant/PW-1, Constable Devender Kumar, was returning home from duty around midnight on 7/10/2011 when, near ISBT, a boy approached him stating that his friend had met with an accident and that their car had run out of petrol. The complainant parked his motorcycle in ISBT parking, accompanied the boy to the nearby petrol pump in the boy's car, paid Rs.200.00 for petrol, accepted a cold drink offered by him, consumed the same, and thereafter became unconscious. He regained consciousness around 05:00 a.m. the next morning to find himself sitting in a TSR at Sarai Kale Khan. He then discovered that his watch, mobile phone, wallet, ATM card, identity card, driver's licence, and his motorcycle (including Rs.73,000.00 kept in its toolbox) were missing. During investigation, it emerged that his Axis Bank debit card had been used for multiple transactions during the night at various petrol pumps. On 30/10/2011, the appellant herein was arrested by police officials from P.S. Kotla Mubarakpur in connection with FIR No. 244/2011, whereupon the complainant's debit card and driver's licence were recovered from him. He was then arrested in connection with the present FIR and other relevant recoveries were effected thereafter pursuant to his disclosure.

(3.) Learned counsel for the appellant challenges the prosecution story as improbable. It is contended that the complainant/PW-1, being a trained police constable, acted in a manner wholly inconsistent with his training. The suggestion is that it is unnatural for him to have voluntarily sat in the car of a stranger around midnight, accompanied him to a petrol pump, paid for petrol for him, and consumed a cold drink offered by him, without any suspicion or verification. Learned counsel highlights that PW-1 did not call PCR at any point. He further points out that PW-1 refused medical examination, due to which the allegation of an intoxicating substance being administered to him stands wholly unproved. It is submitted that PW-1 claims to have woken up in a TSR at Sarai Kale Khan, but no TSR driver was examined by the prosecution. He further points out that PW-5, the parking attendant at ISBT, did not identify the appellant as the person who had removed the motorcycle from the parking. The petrol pump employees did not identify the appellant either. The handwriting expert gave no opinion connecting the signatures on the recovered credit slips to the appellant. Learned counsel has further submitted that the recoveries effected in the present case are doubtful, as no public witnesses were joined for the same.