Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Reserved on: 22 May, 2018
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Decided on: 28 August, 2018
+ CRL.A. 132/2016
MANISH DUBEY ..... Appellant
Represented by: Mr. D.K. Pandey, Advocate
versus
STATE (GOVT NCT OF DELHI) ..... Respondent
Represented by: Mr. Amit Gupta, APP for the
State with ASI Karamvir
Singh, PS North Rohini.
+ CRL.A. 184/2016
NAVIN ..... Appellant
Represented by: Mr. Siddharth Yadav,
Advocate
versus
THE STATE (N.C.T OF DELHI) ..... Respondent
Represented by: Mr. Amit Gupta, APP for the
State with ASI Karamvir
Singh, PS North Rohini.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. Manish Dubey and Navin challenge the impugned judgment dated
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16 December, 2015 convicting them for offences punishable under Section
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397 IPC read with Section 392/34 IPC and the order on sentence dated 22
December, 2015 directing them to undergo rigorous imprisonment for a
period of seven years each and to pay a fine of ₹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
Crl.A.132/2016 & Crl.A.184/2016 Page 1 of 11
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 reported as 1994 (30) DRJ 291
Anoop Singh v. The State . 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 reported as AIR 2007 SC
2400 State of Madhya Pradesh v. Chamru @ Bhagwandas etc. and 2015 (2)
JCC 1022 Arif v. State of Govt. of NCT of Delhi.
4. Learned APP for the State on the other hand submits that the
testimony of Kabir and Manoj are clear and categorical. SI Amit Kumar
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(PW-12) stated in his testimony that the appellants were produced in
muffled face and immediately thereafter, the appellants were sent to judicial
custody. No suggestion has been given either to SI Rajeev Bamal (PW-15)
or Insp. Mahabir Singh (PW-16) in this regard. Stolen property has been
recovered from the appellants. Lastly, the case of the prosecution was that
the dossier was first shown and subsequently, Kabir and Manoj identified
the appellants.
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5. Process of law was set into motion on 27 December, 2011 at around
9:50 P.M. on receipt of information stating that two-three boys came with a
pistol and robbed Numero Uno showroom at Rohini Sector 7, Pocket 7.
Aforesaid information was recorded vide DD No. 29A (Ex.PW-4/A) and
was entrusted to SI Amit Kumar. He along with Ct. Devender Singh (PW-9)
reached showroom of Numero Uno, where Kabir and Manoj, employees of
showroom, met them. He interrogated Kabir and recorded the statement of
Kabir wherein he stated that he was a resident of village Kalyanpur, Kanpur,
Uttar Pradesh and since about last 8 months, he was staying at Jahangirpuri
as a tenant and working at showroom of Numero Uno at Sector 7, Rohini as
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salesman. On 27 December, 2011 at about 9:30 P.M., he along with the
other salesman Manoj Kumar was present at showroom, when 2 boys aged
around 24-25 years, one was about 5’5” in height, strong built, wheatish
complexion and the other one was 5’8” in height, thin built, wheatish
complexion, came to the showroom. He stated that both were carrying
country made pistols (katta) in their hands, which they pointed at them. As
soon as they entered the showroom,they threatened them to take out all the
cash they had or else they would shoot them. He took out around ₹12,968/-,
which were the proceeds of sale for last two days, from the cash counter of
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the showroom and handed it over to the taller boy. While leaving both the
boys also picked up 4 deos, 4 jeans and 4 shirts. Thereafter, he called the
owner Ankur Arya and told him about the incident. The owner advised him
to call the police, so he called the police. Aforesaid statement was recorded
vide Ex. PW-1/A.
6. On the basis of the aforesaid statement of Kabir, FIR No. 366/2011
(Ex.PW-5/A) was registered at PS North Rohini for the offences punishable
under Sections 392/397/34 IPC.
7. Further investigation of the case was handed over to Insp. Mahavir
Singh. He prepared the site plan (Ex. PW-16/A) at the instance of Kabir. He
recorded statement of Manoj and supplementary statement of Kabir as well
as statements of police officials.
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8. On 28 December, 2011, in the morning, crime team reached at the
spot and inspected the spot. Ct. Naveen Kumar (PW-7), Fingerprint
Proficient, lifted two chance prints from the place of occurrence and sent it
to finger print bureau. Ct. Ravinder (PW-8), photgrapher from crime team,
took the photographs of the place of occurrence. Photographs were proved
vide Ex. PW-8/A1-A6 and negatives were proved vide Ex. PW-8/B1-B6. SI
Anil Kumar prepared his report vide Ex. PW-3/A.
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9. On 3 January, 2012, one Mohd. Aslam, complainant in case FIR
No.3/2012 came to the police station and informed that he was robbed of
₹6,000/- by two persons. Mohd. Aslam identified the appellant Navin Yadav
from the dossier uploaded on the computer in the police station. SI Amit
Kumar constituted a raiding party consisting of himself, Ct. Devender (PW-
9), Ct. Ravinder (PW-14) and driver Ct. Vikram. They went to the house of
appellant Navin Yadav at H.No. 183, Village Naharpur where appellant
Crl.A.132/2016 & Crl.A.184/2016 Page 4 of 11
Navin Yadav was found and was interrogated. Appellant Navin Yadav
confessed his involvement in case FIR No. 3/2012 with co-appellant Manish
Dubey. Appellant Navin Yadav was arrested vide memo Ex.PW-12/B and
his confessional statement (Ex. PW-12/C) was recorded in case FIR No.
3/2012. Appellant Navin Yadav got recovered one motorcycle bearing no.
DL 8S ND 0289 which was parked in a gali near his house and then led
them to front of H.No. E-482, where katta was recovered from drain.
Motorcycle was seized in case FIR No. 3/2012 vide seizure memo Ex. PW-
12/J and sketch of the katta was prepared vide Ex. PW-12/D. SI Amit
Kumar again interrogated appellant Navin Yadav and recorded his
supplementary disclosure statement (Ex. PW-12/F). Thereafter, appellant
Navin Yadav took them to Tughlakabad Metro Station, from where
appellant Manish Dubey was arrested vide memo Ex. PW-12/G. Appellant
Manish Dubey was interrogated and his confessional statement vide Ex.
PW-12/H was recorded.
10. SI Rajeev Bamal (PW-15) effected the arrest of both the appellants in
the present case vide arrest memos Ex.PW-15/A and Ex.PW-15/B.
Disclosure statements of both the appellants were recorded vide Ex.PW-
14/A and Ex.PW-14/B. Thereafter, both the appellants, led him, Ct.
Ravinder and Ct. Babban to Sector 7, Rohini and pointed out the Numero
Uno showroom at dividing road of Sector 7 & 8. On their pointing out, SI
Rajeev Bamal prepared pointing out memos vide Ex.PW-14/C and Ex.PW-
14/D. Thereafter, appellant Navin led them to his house i.e. H.No. 183,
Naharpur Village, Delhi, where two pants and two shirts and one deo lying
on a chair on second floor of his house, were recovered. The said articles
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were taken into possession vide seizure memo Ex.PW-14/E. On 5 January
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2012, an application for conducting judicial TIP of both the appellants was
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moved which was fixed for 7 January, 2012.
11. On completion of investigation, charge sheet was filed. Charge was
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framed vide order dated 16 May, 2012.
12. Kabir who was examined as PW-1 in Court deposed in sync with his
statement made before the police. He further stated that the boy had
demanded a big carry bag from him and inquired from them about 28 inch
waist jeans. He stated that he told the boy that they didn’t have 28 inch waist
jeans, but they had 30 inch waist jeans. He stated that the boy took 4 jeans of
blue color, 3 shirts (one black, one grey black and one black white) and 4
deodorants. During his cross-examination, he stated that he was taken to the
police station in police jeep at about 12:30 A.M. and he remained there the
whole night. He stated that his associate Manoj was taken to the police
station in a separate gypsy and he was kept in separate room. He also stated
that Manoj was called to police station after the arrest of the appellants. He
stated that police did not seize the stolen articles in his presence. He stated
that he had not counted the cash at the time when he had handed over the
same to the appellants. He stated that sale of the showroom was ₹10,000/-,
sometimes more than ₹10,000/- and on some days, no sale at all. He stated
that usually they keep ₹4,000-5,000/- for day to day expenses and the
remaining amount used to be deposited in bank. He stated that police was
informed about the exact amount of robbed cash at the showroom, after
tallying the sale proceeds. He further stated that whenever they used to take
out settlement from the credit card machine, at that time, they used to switch
off CCTV camera, however usually CCTV camera was on, when cash was
counted. He stated that he saw the appellants first time in the police station
Crl.A.132/2016 & Crl.A.184/2016 Page 6 of 11
from distance, when he was called to Police Station to identify them. He
stated that he was not shown the photograph of the appellants prior to their
identification.
13. Manoj (PW-2), Salesman, corroborated the testimony of Kabir. He
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further stated that on 1 January, 2012, he had identified appellant Navin
Yadav from the dossier (Ex. PW-2/A) as one of the accused. He correctly
identified the case property. During his cross-examination, he stated that
Manager Pushpender was on leave and housekeeper Pankaj left the
showroom at about 8:30/8:45 P.M. He stated that when they perform
settlement, they remove the wire of the camera, thus camera was not
working at that moment. He stated that photograph of appellant Navin
Yadav was shown to him on the computer. He stated that he was
interrogated whole night by police about the day of the incident.
14. Ankur Arya, owner of showroom, stated that in the year 2011, he was
running showroom of Numero Uno at C-7/70, Sector-7, Rohini, Delhi and
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Kabir and Manoj were working in his showroom as salesman. On 27
December, 2011 at about 9:30/10:00 P.M., Kabir informed him on telephone
that two boys had taken about ₹13,000 and some clothes and deodorants. He
came next day to shop and on checking found three shirts, four jeans, four
deodorants and cash of ₹12,968/- were missing. During his cross-
examination, he stated that his employee Pushpender, Manager of the
showroom, was on leave on that day and Kabir and Manoj were looking
after the work of sale and purchase in the absence of Pushpender. He stated
that when Kabir called him, he did not tell him the exact amount. He stated
that they didn't maintain separate register for accounts of sale and purchase
and that these accounts were kept in the computer. He stated that police
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didn’t ask him about sale and purchase account statements and they did not
seize his computer. He stated that he told the figure of ₹12,968/- to police
after tallying the accounts next day. He stated that the average turnover/sale
of his showroom was around ₹10,000-15,000/- per day. He stated that at the
time of shutting down, CCTV cameras automatically switch off, as
electricity is switched off. He stated that the CCTV cameras are on at the
time of counting the cash by the employees. He stated that they used to issue
bills for the purchase of articles in their showroom and that police had not
seized any receipt or bill on that day. He again stated that the police might
have seized the bill of the day of the incident.
15. Rajesh Sharma (PW-11) stated that he was the registered owner of
motorcycle bearing No. DL 8S ND 0289. He used to park the motorcycle
(Ex.P4) in front of his house. The said motorcycle was stolen. He further
stated that he had sold the said motorcycle to one Parmod in November,
2011, but due to paucity of time, he had not executed the transfer papers. He
got the same released on superdari vide superdarinana Ex. PW-11/B.
16. Deepak Wason (PW-13), Metropolitan Magistrate, Saket Court, New
Delhi stated that he got conducted TIP proceedings of appellant Navin
Yadav vide Ex.PW-13/A and of appellant Manish Dubey vide Ex.PW-13/B.
Both the appellants refused to join the TIP as their photographs had already
been taken in the police station. He also got conducted the TIP proceedings
of the case property vide Ex.PW-1/C and Kabir correctly identified two
jeans, two shirts and one deodorant.
17. Statement of appellant Manish Dubey was recorded under Section
313 Cr.P.C. wherein he stated that the recovery had been planted, the
recovered articles were shown to the complainant prior to judicial TIP and
Crl.A.132/2016 & Crl.A.184/2016 Page 8 of 11
that he was innocent and falsely implicated. He stated that he had been
acquitted in the case FIR No. 3/2012 of PS North Rohini.
18. Statement of Appellant Navin was recorded under Section 313
Cr.P.C. wherein he also stated that the recovery had been planted, the
recovered articles were shown to complainant prior to judicial TIP, he was
innocent and falsely implicated. He stated that one police official called him
from his house on the pretext that SHO was calling him and when he went to
Police Station, he was wrongfully detained in the present case.
19. From the evidence as noted above, it is evident that the case of the
prosecution is based on the identification of the two eye witnesses, that is
Kabir and Manoj as also the recovery of the articles taken away, that is, two
jeans, two shirts and one deodorant. Though Kabir in the identification
parade identified the two jeans, two shirts and one deodorant however, it
cannot be disputed that in the absence of a particular identification mark the
two jeans, two shirts and one deodorant are items of common use which are
easily found in the market. Hence the same cannot be used to convict the
appellants. Appellant Navin Yadav was arrested in FIR No.3/2012 when the
complainant in the said case namely Mohd. Aslam was shown the dossier
uploaded in the computer in the police station. Navin Yadav was arrested
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on 3 January, 2012 in the present case, whereafter he was taken to various
places and recoveries like the motorcycle, katta etc. were made at his
instance. He also identified the place of occurrence. At the instance of
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Navin Yadav, Manish Dubey was also arrested on the same day, that is, 3
January, 2012 at 7.45 PM. After the arrest both the appellants were taken to
the Numero Uno showroom where their pointing out memos were prepared
and later at the instance of Navin Yadav, the alleged recovery of two pants,
Crl.A.132/2016 & Crl.A.184/2016 Page 9 of 11
two shirts and one deodorant were made from his house on the second floor.
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An application for judicial TIP was made only on 5 January 2012 which
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was fixed for 7 January, 2012. There is no evidence led by the prosecution
to show that before the TIP was conducted the appellants were kept muffled
and that the witnesses had no occasion to see the appellants. Hence the
refusal of the test identification parade by the two appellants cannot be said
to be without any basis. Admittedly the CCTV cameras were switched off
when the alleged incident took place. Kabir in his cross-examination
admitted that Manoj was called to the police station after the arrest of the
accused persons and no stolen articles were recovered in his presence. As
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per Manoj on 1 January, 2012 he identified Navin Yadav from the dossier
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as one of the accused, however, the case of the prosecution is that on 3
January, 2012 on the complaint of Mohd. Aslam FIR No.3/2012 was
registered and Mohd. Aslam identified Navin Yadav from the dossier
whereafter his arrest was made. In his cross-examination he admitted that
police repeatedly called him to identify the accused persons in the police
station and that they were shown the photographs of the persons and asked
to identify the accused. According to him photograph of Navin Yadav was
shown.
20. Considering that the prosecution has not been able to prove that
before the appellants refused the test identification parade they were not
shown to the witnesses and the articles recovered i.e. two jeans, two shirts
and a deodorant are articles easily available in the market, this Court finds it
fit to extend the benefit of doubt to the appellants.
21. Consequently, the impugned judgment of conviction and order on
sentence is set aside. Appeals are disposed of.
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22. Appellants are directed to be released forthwith, if not required in any
other case.
23. Copy of this order be sent to concerned Superintendent(s) for
updation of the Jail record.
24. TCR be returned.
(MUKTA GUPTA)
JUDGE
AUGUST 28, 2018
‘vn’
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