SHAN MOHD. Vs. STATE

JUDGEMENT

(1.) Aggrieved by a judgment dated 30.10.2014 of learned Additional Sessions Judge in Sessions Case No. 94/2013 arising out of FIR No. 546/2013 PS Govindpuri by which the present appellant - Shan Mohd. @ Shanu @ Rehan was held guilty for committing offences punishable under Ss. 392/34 IPC and 25 Arms Act, the instant appeal has been filed by him. By an order dated 08.12.2014, he was sentenced to undergo RI for ten years with fine Rs. 10,000/ - under Sec. 392 IPC and RI for three years with fine Rs. 5,000/ - under Sec. 25 Arms Act. Both the sentences were to run concurrently. Briefly stated, the prosecution case as reflected in the charge -sheet was that on 05.08.2013 at about 05.30 a.m. at house No. RZ -822/23, Tughlakabad Extension, Tughlakabad, the appellant along with his associates Shah Hussain (since acquitted) and Anish (not arrested) committed robbery and deprived the victim - Tahira of her jewellery articles. The appellant also used a buttandar knife to inflict injuries to her. Police machinery came into motion when information was received vide Daily Diary (DD) No. 105B (Ex. PW -3/A) on 05.08.2013 at 06.20 a.m. informing that a 'thief has been apprehended at house No. 521, RZ Block No. 23, Tughlakabad Extension. Another Daily Diary (DD) No. 43A (Ex. PW -3/B) came into existence at 06.55 a.m. informing that an individual Rehan @ Shanu along with 'stolen articles' and 'knife' has been apprehended. Initially, the investigation was assigned to PW -10 (HC Pramod), who went to the spot. Victim - Tahira had already been taken to the hospital by PCR. The appellant was found to be in custody of some individuals. HC Pramod recovered a buttandar knife from the right side dub of the appellant and apprised the police station. On that, PW -12 (SI Satyavir Singh) rushed to the spot and conducted necessary proceedings. During investigation, statements of the witnesses conversant with the facts were recorded. The accused - Shah Hussain was arrested. Upon completion of investigation, a charge -sheet was filed against the appellant and Shah Hussain for committing various offences. To establish its case, the prosecution examined twelve witnesses. In 313 Cr.P.C. statements the accused, persons, denied their involvement in the crime and pleaded false implication. The trial resulted in appellant's conviction as mentioned previously. Shah Hussain was acquitted for the charges. It is apt to not that State did not challenge his acquittal. Being aggrieved and dissatisfied, the instant appeal has been preferred by the appellant.

(2.) I have heard the learned counsel for the parties and have examined the record. Undisputably, PW -1 (Tahira), the victim or complainant, did not support the prosecution. In her examination -in -chief, itself she completely exonerated both the accused persons sent for trial. She did not identify any of them to be the assailants. She did not state if any jewellery article belonging to her was robed or recovered, from the assailants in her presence. She was cross -examined by the learned Addl. Public Prosecutor with Court's permission as she resiled from her previous statement. In the cross -examination also, she denied the suggestions put by the learned Addl. Public Prosecutor. She denied appellant's apprehension by public persons including her uncle Parvez at the spot. She admitted that description of the assailants was not given by her to the police in her statement. PW -6 (Afrin), her daughter, also in her examination -in -chief did not identify the school bag (Ex. P6) allegedly recovered from the appellant at the spot. On seeing the bag (Ex. P6), she was certain that it did not belong to her. She denied in the cross -examination by learned Addl. Public Prosecutor that the appellant armed with a knife had come to their house. PW -7 (Shamshad) - victim's husband was away at Chikmangloor (Bangalore) on the day -of incident. He merely disclosed that at about 07.00 - 07.30 a.m. from his wife on phone, he came to know about a theft to have taken place at his house. He also did not identify any of the assailants present in the Court.

(3.) The prosecution heavily relied upon the testimony of PW -4 (Parvez) who claimed before the Court that on hearing Tahira's cries, he had rushed to the spot and was successful to apprehend the appellant with the assistance of some individuals after a chase. He further deposed that the appellant was running with a school bag and it was thrown by him in the parking of the apartment. On checking the bag, two golden bangles; one necklace (golden); one finger ring (golden) and a pair of ear tops (Golden) were recovered. Someone informed the police at 100. The police recovered a knife from the right side dub of the appellant's pant. The appellant disclosed the name of his associate as Hussain. This witness made significant improvements in his deposition before the Court for which he was duly confronted with the statement (Ex. PW -4/DA) given to the police under Sec. 161 Cr.P.C. His testimony runs counter to the victim's statement before the Court. It is claimed that the appellant was apprehended after some chase by PW -4 (Parvez) with the assistance of some individuals. However, no such individual was cited as a witness. It is unclear as to who had made telephone call to the police at 100. PW -8 (Chand Mohammad) disclosed that when he was going to offer Namaaz to a mosque in between 06.00 - 06.30 a.m., he heard a noise 'chor -chor' and saw the appellant having been overpowered by the public. He further disclosed that he was having a bag of green colour in one of his hands and a knife in the other hand. The police arrived there. He was categorical to say that he did not see anyone chasing the assailants. He did not state recovery of any jewellery article from the appellant's possession. PW -4 (Parvez) has deposed that knife was recovered from the right side dub of the pant on arrival of the police. PW -4 further disclosed that the jewellery articles were thrown in the parking of the apartment. The material in the two contradictory versions has not been reconciled.