RAHEES AHMED Vs. STATE DELHI ADMINISTRATION

JUDGEMENT

(1.) Baldev Raj Sharma was the Senior Supervisor with the Super Bazar, Mansarover Park, Delhi. On 12th October, 1992 while he was proceeding towards the United Commercial Bank, G.T. Road, Shahdara he was way laid and was robbed of Rs. 13.263.00. Allegedly, it was the appellant and his companion who were responsible for this. Whereas the companion of the appellant was apprehended almost at the spot and the bag containing the robbed currency notes was recovered from him, the appellant was arrested later on. However, since the appellant too, like his companion, was convicted and sentenced under Section 397 of the Indian Penal Code and under Section 27 of the Arms Act, he has preferred this appeal.

(2.) The learned Counsel for the appellant has pressed this appeal principally on the ground of identification of the appellant and I do feel that the appeal deserves to be allowed on that score.

(3.) As already noticed by me above, the appellant was not arrested at the spot. He was admittedly not known to Baldev Raj Sharma from before. Whereas according to the Investigating Officer Public Witness 5 ASI Brahm Smgh, the appellant was arrested on the basis of the disclosure statement made by the co-accused and far from the place of occurrence and although he further claims that at the time of apprehension of the appellant, Baldev Raj Sharma was with him and had identified the appellant, the complainant Baldev Raj Sharma has, however, not lent any helping hand to the Investigating Officer on this aspect of the matter. If he is to be believed he had remained at the police station and that the appellant was neither identified by him at the time of his apprehension nor was he present at the time of the alleged apprehension of the appellant. In other words, if Baldev Raj Sharma is to be believed neither there was a disclosure statement made by the co-accused in his presence nor he had accompanied the police party in search of the appellant nor was the appellant apprehended on his identification. This, then, cuts at the version given by the Investigating Officer. I think this contradiction is too material to be ignored. Although it is further alleged that a knife was recovered from the appellant that knife has not been proved in evidence. What has been proved is the knife recovered from the co-accused. I may emphasise that the bag containing currency notes belonging to Baldev Raj Sharma had not been recovered from the appellant but from the co-accused. In fact, no recovery was made from the appellant and I do agree that since the appellant was not known to Baldev Raj Sharma from before and as the appellant was not arrested at the place of occurrence nor was he arrested on his instance, the question of identification of the appellant becomes material.