ABDUL HAMEED Vs. STATE (DELHI ADMINISTRATION)

JUDGEMENT

(1.) This is an appeal by Abdul Hameed appellant against his conviction under Sections 392/34 and 397 IPC and sentences awarded thereunder by the impugned judgment and order of sentence of the court of Shri. S.M. Aggarwal, Additional Sessions Judge, Delhi, dated August 2, 1983. The appellant has been sentenced to rigorous imprisonment for five years and a fine of Rs. 1000/- under Section 392 read with Section 34 IPC. He was sentenced to rigorous imprisonment for ten years and a fine of Rs. 1000/- under Section 397 IPC.

(2.) THE prosecution case stated in brief is that on the night intervening January 10/11, 1979 at about 3.30 O'clock, Atma Singh and Nirmal Singh PWs were going in a three wheeler scooter DHR 63 from ISBT to Old Delhi Railway Station. When the scooter reached near Dufferin Bridge, Mori Gate, Delhi one car bearing registration No. DPA 5231 overtook the three wheeler scooter and stopped in front of the scooter, forcing it to stop. Four persons armed with knives came out of the car. Two of them came towards the side of Nirmal Singh and the other two on the side of Atma Singh. Atma Singh was having an attache case containing some wearing apparel, his driving licence No. 7178 and passport No. L-696955 in the scooter rickshaw. The four assailants commanded Atma Singh and Nirmal Singh to hand over to them whatever they had with them. One of them snatched the wrist watch which Nirmal Singh was wearing on his wrist. They also removed the attache case. Nirmal Singh resisted the removal of the wrist watch from his wrist on which he was given a knife blow on his nose. Some injuries were caused to Atma Singh PW also with the knife when he also offered resistance to the assailants. In the meanwhile a truck came from the opposite direction. It stopped on seeing the incident. On that the four robbers escaped along with the attache case and the writs watch in car, Nirmal Singh and Atma Singh were taken by the scooter driver in his scooter rickshaw to ISBT, Police Post where an FIR was lodged by Nirmal Singh. They were given first aid by Dr. R.P. Saraswat of Police Hospital, Delhi and were discharged. On February 11, 1979 the appellant Abdul Hammed along with and his three co-accused and one other person were produced by the police of police station Bara Hindu Rao before a Magistrate at Tis Hazar. Then in case FIR No. 83/79 of police station Hauz Qazi they were formally arrested by SI Malook Singh on February 16, 1979. The appellant Abdul Hameed, on interrogation by SI Malook Singh is alleged to have given a disclosure statement that he had kept the stolen property of this case at the house of one person at 'Ghaziabad' which he could point out and get recovered. This statement was recorded as Ex. PW 6/A in the presence of two constables Ram Sarup and Janak Raj. In pursuance of this disclosure statement the appellant is alleged to have got recovered the attache case Ex. P1 along with some clothes found therein from a house at Selampur, Shahdra. These goods were taken into possession vide recovery memo. Ex. PW 6/D. According to the prosecution the attache case Ex. P 1 alone is the subject-matter of the robbery as the clothes found therein were not identified by Atma Singh PW as the robbed property. On September 12, 1979 a test identification parade was conducted by Shri S.M. Gupta Metropolitan Magistrate for getting the attache case Ex. P1 identified from PW Atma Singh. Atma Singh identified the attache case Ex. P1 as the one of which he was robbed of. The clothes that were found in this attache case were also got identified from him. He was, however, unable to identify them. On March 6, 1979 the appellant Abdul Hameed and his other three co-accused were all produced from judicial custody before Shri S.M. Gupta Metropolitan Magistrate (PW 7). An application was moved by the police before him for arranging a test identification parade for getting them identified by PWs. The accused persons including the appellant declined to join the test identification parade and the statement of the appellant in that regard Ex. PW 7/C was recorded by Shri Gupta. Among others, the prosecution has relied on the evidence of Atma Singh and Nirmal Singh PWs of their identifying the appellant before the trial court as one of the person who committed the robbery.

(3.) FIRST , the case of the prosecution regarding the disclosure statement Ex.PW6/A allegedly having been made by the appellant and the alleged recovery of the attache case Ex P1 at the instance of the appellant is wholly worthless S.I. Malook Singh PW6 in his cross-examination admitted that he did not call any public witness to join him while interrogating the accused and when he recorded the alleged disclosure statement of the appellant Ex. PW 6/A. No. reason has been given by him for his non-joining any public witness at that time. The disclosure statement Ex. PW6/A purports to have been given in the presence of two constables Ram Sarup and Janak Raj. Neither of them was even examined by the prosecution at the trial of the case. S.I. Malook Singh also did not say from his word of mouth as to what was the statement made by the appellant. He simply stated that the appellant had given the statement Ex PW/6A. The document Ex.PW6/A is a very long document running over two fool scap pages wherein the entire prosecution story is recorded. The learned Additional Sessions Judge admitted the whole of this document in evidence treating the same as a disclosure statement of the appellant which obviously could not be so by any stretch of imagination. Next, in the statement Ex PW6/A the appellant is shown to have stated that he could get the case property recovered, from a house at Ghaziabad. The recovery of the attache case Ex P1 along with some clothes found wearing purports to have been made from a house at Seelamplur, Shahdara. The recovery of the attache case Ex. P 1 itself could not at all be considered to be in pursuance of the disclosure statement Ex.PW 6/A. Then again S.I. Malook Singh did not join any public witness at the time of effecting the recovery of the attache case Ex. P-1. In his cross-examination he admitted that there were residential houses nearby the house from where the attache case was recovered and further that he did not call anybody from any of those houses. The recovery memo Ex. PW 6/D purports to have been attested by one Hira Lal, a public man, and constable Ram Sarup. Neither of them was examined as a prosecution witness in the case. Then against the identification parade for getting the attache case and the clothes identified from Atma Singh PW2 was also not conducted properly. Atma Singh PW 2 in his cross-examination stated that when he identified the attache case before the Magistrate only his attache case was lying there. No attempt was made on behalf of the prosecution to get this part of the statement of Atma Singh cleared from his either by seeking permission to cross-examine him on this point or by way of re-examination. Another thing to note is that Shri M.S. Rohilla who conducted the identification parade stated as PW 8 that attache case Ex. PI was mixed up with three other attache cases. In his cross-examination he stated to the effect that all these four attache cases were of different colours and gave their different colours. It is, an elementary thing that for conducting an identification parade of an article like an attache case should be mixed up with attache cases of the same colour. The witness Atma Singh could thus easily pick up the attache case Ex. P1 only by knowing its colour as black which was different from the colours of the other three attache cases. The learned Additional Sessions Judge did not note any of these serious flaws in the case of the prosecution regarding the alleged discovery of the attache case Ex P 1 at the instance of the appellant and found the same as proved without noticing the, said extremely serious flaws, as a result of which the case of the prosecution in that regard was entirely worthless and deserved to be rejected. I accordingly discard the prosecution evidence in that regard.