MANISH DUBEY Vs. STATE (GOVT NCT OF DELHI)

JUDGEMENT

(1.) Manish Dubey and Navin challenge the impugned judgment dated 16th December, 2015 convicting them for offences punishable under Section 397 IPC read with Section 392/34 IPC and the order on sentence dated 22nd December, 2015 directing them to undergo rigorous imprisonment for a period of seven years each and to pay a fine of Rs. 2,000/- each, in default whereof to undergo rigorous imprisonment for a period of one month each.

(2.) Assailing the conviction, learned counsel for Manish Dubey contends that the appellant was not arrested at the spot. He was arrested in another FIR being FIR No. 3/2012 and on the basis of disclosure statement of Navin, appellant was arrested in the present FIR. There was no recovery from the appellant either of the robbed goods or the pistol. He refused for test identification parade because he was shown to witnesses in the police station. Reliance is placed on the decision Anoop Singh v. The State, (1994) 30 DRJ 291. CCTV footage has not been produced in evidence and no satisfactory explanation has been rendered why CCTV was shut at the time of incident. Furthermore, stating exact robbed amount immediately after the incident was unnatural. Lastly, the appellant has been acquitted in FIR No. 3/2012 and he is not involved in any other case.

(3.) Learned counsel for Navin urges that no CCTV footage either from the shop or the market has been placed on record and the explanation rendered for non production is not credible. There are contradictions in the testimony of Kabir (PW-1), Manoj (PW-2) and Ankur Arya (PW-10) with respect to CCTV footage. There is difference in time as to how long the police stayed at the spot. There is inconsistency with regard to counting of cash. No independent person from the market or nearby shops was made a witness. No finger prints or chance prints were lifted from the spot. Manoj admitted that the site plan was not prepared at his instance and all the proceedings were conducted in the police station. With respect to TIP proceedings, reliance is placed upon the decisions State of Madhya Pradesh v. Chamru @ Bhagwandas etc., (2007) AIR SC 2400 and Arif v. State of Govt. of NCT of Delhi, (2015) 2 JCC 1022.