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Delhi High Court acquits man convicted for robbery, other allied sections

The Court observed, “The appellant from the inception has taken the consistent defence of false implication at the instance of one Nitin and also on account of previous quarrel between him and the complainant.”

The Delhi High Court has acquitted a man convicted for offences under Sections 392 read with 397 of the Indian Penal Code and sentenced to 7 years of rigorous imprisonment while saying that non-examination of any independent witness has seriously impaired the credibility of the prosecution case. (Sonu V. The State (Govt. Of Nct), Delhi)

A single-judge bench led by Justice Manoj Kumar Ohri noted that is was admitted fact that both the complainant and the appellant were known to each other being erstwhile classmates.

The Court further observed,

“The appellant from the inception has taken the consistent defence of false implication at the instance of one Nitin and also on account of previous quarrel between him and the complainant.”

“The Trial Court incorrectly reached the conclusion that the appellant had taken contradictory defences in the trial. In opining so, the Trial Court noted that while cross examining the complainant, no suggestion was given on behalf of the appellant that the altercation with Nitin had taken place in a Gulli Danda match. The Trial Court failed to appreciate that the suggestion of an altercation with Nitin was duly given and only the word ‘Gulli Danda match’ was not mentioned, which was clarified by the appellant in his statement recorded under Section 313 Cr.P.C.,” said the High Court.

Whether a person can be convicted and sentenced without proving a case against him beyond reasonable doubt?

The present criminal appeal has been preferred under Section 374(2) r/w Section 383 Cr.P.C on behalf of the appellant through advocates, S.S. Ahluwalia along with Mohit Bangwal,  challenging the judgment dated 09.08.2019 passed by the learned Additional Sessions Judge, Rohini Court, Delhi arising out of FIR No. 605/2015 registered under Sections 392 (punishment for robbery where a maximum imprisonment for 10 years and fine is to be levied) /394 (commission and attempt to commit robbery and states that if a person volun­tarily causes hurt, such person, and any other person jointly concerned in such act, shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.) /34 IPC at Police Station Mukherjee Nagar, Delhi, whereby the appellant was convicted for the offences punishable under Section 392 IPCr/w Section 397 IPC (If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any per­son, the imprisonment with which such offender shall be punished shall not be less than seven years) and sentenced to undergo Rigorous Imprisonment for a period of 7 years along with fine of Rs.1,000/-, in default whereof to undergo Simple Imprisonment for a period of one month.

He robbed me of Rs 1,000, threatened me: Complainant

The complainant, deposed in his testimony that on 01.05.2015, when he was coming back from the house of his friend, the appellant along with his three associates met him. The appellant put a knife on the waist of the complainant and demanded money. When the complainant refused, the appellant slapped him and the associates of the appellant caught hold of him. The appellant took out Rs 1,000 from the complainant’s pocket and extended threats to him thereafter.

The complainant further deposed that the site plan was prepared at his instance. On 05.05.2015, he is stated to have spotted the appellant with some boys at Yograj Colony, Bus Stand wherefore he informed the police and the police personnel approached the Bus Stand along with him. On seeing the police party, the appellant is stated to have tried fleeing away but he was apprehended after a chase. The other associates of the appellant, however, managed to escape. In the appellant’s personal search, a knife was recovered and it was identified by the complainant as the same knife which was used at the time of the incident. He has also denied having any altercation with the appellant and acting on behest of any other person.

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1) Learned counsel for the appellant has assailed the conclusions arrived at in the impugned judgment by contending that:

(i) There are contradictions in proving of the place of incident by the prosecution: the place mentioned in FIR lodged and the testimony of the Investigating Officer and the Rukka and the site plan do not match. HC-Madan has deposed that the appellant had pointed out the place of incident. Making matters worse, the complainant had stated that the site plan was not prepared at his instance while SI-ManzoorAlam deposed that the site plan was prepared at the instance of the complainant.

(ii) No public witness present at the time of arrest of the appellant was made to join the proceedings.

(iii) The knife recovered during apprehension of the appellant could not be connected with him as no fingerprints were taken, and

(iv) The Trial Court did not consider the testimony of DW-1.

2) The counsel for the appellant contends that there is greater inconsistency on the point of arrest of the appellant. While the complainant deposed that on 05.05.2015 after seeing the appellant at Yograj Colony, Bus Stand at about 4:00 p.m., he had reached the Police Station and the police personnel immediately accompanied him to the Bus Stand. While, the Investigating Officer testified that the complainant had reached Police Station Mukherjee Nagar at about 7:00 p.m. on the said date.He further stated that they had left the Police Station after 30 minutes from the arrival of the complainant. Another contradictory testimony was that of the brother (Monu) that the appellant was arrested from his house. Thus it seems highly improbable that the appellant continued to remain at the Bus Stand for more than 3 and ½ hours or that it took the complainant about 3 hours to reach the Police Station.

3)  The counsel drew the attention odf this court to Supreme Court cases, DudhNathPandey v. State of Uttar Pradesh State of U.P. v. Babu Ram and Munshi Prasad and Others v. State of Bihar where SC has observed, “courts should avoid the error of attributing motives to defence witnesses merely because they are examined by the defence. Defence witnesses are entitled to equal treatment with those of the prosecution.” In the present case, the Trial Court has brushed aside the evidence of defence witnesses as one coming from interested witnesses.

4) The appellant from the inception has taken the consistent defence of false implication at the instance of one Nitin and also on account of previous quarrel between him and the complainant. The Trial Court incorrectly reached the conclusion that the appellant had taken contradictory defences in the trial. The Trial Court failed to appreciate that the suggestion of an altercation with Nitin was duly given and only the word ‘GulliDanda match’ was not mentioned, which was clarified by the appellant in his statement recorded under Section 313 Cr.P.C.

5) Learned APP for the State, on the other hand, has supported the impugned judgment. He has submitted that the appellant was already known to the complainant. It is also submitted that besides the present case, the appellant has other previous involvements.

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Observation of the Court

After analysing the contentions of both the sides, the court observed that:

1) Material contradiction is present in this case with regard to the abovementioned contentions.

2) It was imperative for the prosecution to cite independent public witnesses but none was produced. That evidence in the present case is that public persons were present at the time of incident and also at the time of arrest.

3) it is also noticed that the FIR about the quarrel was given by a third person but no effort was made to trace the caller. He could have been cited as an independent witness who would have lent a much-needed corroboration to the prosecution case and assured fairness in the conduct of the Investigating Officer.

4) The non-examination of any independent witness has seriously impaired the credibility of the prosecution case.

5) Court was of the opinion that the prosecution has failed to prove its case against the appellant beyond reasonable doubt.

Order

The high court on 06.09.2021, set aside the impugned judgment on conviction and order on sentence. The appeal was allowed and the appellant was acquitted of the charges framed against him.

Implication

An accused is not to be branded as a criminal as long as his case is proved beyond reasonable doubt. This principle is an essential part of criminal law, where the burden of proof lies on the complainant. And he has to ease this burden by removing every doubt arising in the mind of the court regarding the culpability of the accused.

Read the Judgment below.

MKO06092021CRLA6332020-145643

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