TASLEEM Vs. STATE (NCT OF DELHI)

JUDGEMENT

(1.) By the present appeal, Tasleem challenges the impugned judgment dated 5 th December, 2016 convicting him for offence punishable under Section 392/34 IPC in FIR No. 490/2012 registered at PS Gokul Puri and the order on sentence dated 9 th December, 2016 directing him to undergo rigorous imprisonment for a period of three years and six months and to pay a fine of Rs. 500/- and in default whereof to undergo simple imprisonment for a period of two months for the offence punishable under Section 392 IPC. In the above noted FIR Tasleem and Saleem were apprehended at the spot and tried for offences punishable under Section 392/397/34 IPC however, during the course of trial Saleem absconded and was declared a proclaimed offender. Thus pursuant to trial, only Tasleem was convicted and the proceedings qua Saleem would be revived after his re-arrest.

(2.) Learned counsel for the appellant contends that there are glaring contradictions with respect to the number of people involved in the offence. Gyan Chand (PW-1) and Rishi Pal (PW-8) stated that there were two persons committing theft, however, Lucky (PW-6) stated that there were three persons running towards the drain. There are contradictions with regard to the recovery and use of iron cutter. Gyan Chand stated that the appellant had shown him the iron cutter but in his cross-examination, he stated that the iron cutter was recovered from the co-accused. Lucky and Rishi Pal do not mention about the appellant showing the iron cutter. Thus, use of the iron cutter by the appellant has not been proved therefore, at best, the offence made out is under Section 379 IPC. There was no recovery from the appellant and in view of the contradictory stands of the alleged eye witnesses, appellant be acquitted.

(3.) Learned APP for the State on the other hand submits that Rishi Pal is the main witness in the present case and he informed Gyan Chand. Testimony of Rishi Pal is consistent and only two accused were involved in the incident. He identified the iron cutter also.