CRIMINAL APPEAL
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IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI
(CRIMINAL APPELLATE JURISDICTION)
Criminal Appeal No......................... 72002
In the Matter of: -Shri.........................
S/o..................................... Appellant
Through Parokar..................
if appeal is filed through relatives/friend
S/o........................................
r/o........................................
Versus
The State of NCT, Delhi........................... Respondent
Criminal Appeal Against the order dated and passed by ASJ, Delhi convicting the appellant u/s 392/397/34 of IPC and sentencing to undergo RI for a period of 7 years.
Most respectfully showeth: -
That the humble appellant was tried by Ld. Additional Session Judge, Delhi for the offence u/s 392/397/34 IPC and on conviction, sentenced to undergo RI seven years, vide order dated 24-12-2001:
2. That the brief fact of prosecution leading to the trial before the Ld. ASJ is that on 7-9-2000,..............................., a mistry by profession, came after finishing his work in....................... at about 9. 30 pm by his bicycle. On the way his bicycle was punctured as such he was pulling his bicycle to his residence and was passing by the side of a park near and over-head water tank near wazirpur red-light crossing. In the meantime all the three accused came cut of that park by scatting over the grill and all came in front of bicycle of the complainant. The accused............................ caught hold of the bicycle from the front side while co-accused....................... took out knife and wielded on the complainant and asked him to hand over whatever money he had with him and also threatened to stab at him, if he did not do so, one of them removed one diary and one currency note of Rs. 50/- from the pocket of
his shirt. Meanwhile two scooterists who were passing stopped along with others and they caught hold of the said three accused persons. Accused...................... fell down, while attempting to run away fell down and in the process of climbing the wall of the park and sustained injuries on his head. Public assembled and gave beatings. PCR came, Local police arrived and accused were handed over to local police and tried after committed to session court.
3. That prosecution examined 7 witnesses including PW-3.................. the complainant. No public witness, inspite of clear report/statement that accused were stopped (a) by two scooterist and their pillar rider (b) collected lots of public who handed over the accused persons to the police at Red Light crossing, was examined to bring the correctness of the crime brought before court but convicted and sentenced to 7 years RI.
4. That being aggrieved by the conviction, the appellant wish to submit the following grounds:
GROUNDS: -
(A) That there was no such offence taken place at all, even if it is so, it was only & "pick pocketing" in terms of PCR report as referred in para 9 of the judgment - no robbery or dacoity as charged by the court had ever taken place.
(B) That knife as alleged was planted later to make the case u/s 397 IPC for the public nor the two scooterist never spoke about the knife, nor they were produced as witness, hence the case is cooked up, more so three persons known to the victim (PW-3................ ) will not attack for a mere Rs. 50/- unless they knew that the victim is in possession of a big amount nor they did not even tried to snatch the cycle. Case is concocted to which police got benefit and PW-3.
(C) That PW-3 (star witness as claimed by prosecution) states that his hand was held by Raju accused and point knife at his throat and tool-out money. On the other hand local police states (PW-7............... in para 10 of judgment) accused..................... was found possession of a folding knife in his right pocket of his wearing. There is contradiction. The PW-3 states in his statement before court that he was pulling cycle as his cycle was punctured, when mentioned about this neither in his Asal Tehrir improvement in his version, besides he states back as 9/9-30 pm. before court timing is 10. 15 pm. How could accused Raju take out money and
knife from his pocket when PW-3 was held by the both hands of accused Raju.
In his cross-examination, he did not remember anything-who took out money and diary-but agreed to have sealed diary and Rs. 60-note (XX by App. ) Only a fabricated case against innocent person could come to such contradictory conclusion.
(D) That interestingly PCR official never spoke about open knife nor folding knife which the accused were handed over to PCR official by public nor PCR official spoke about open and folding knife while handing over to Local police. It is certain if the accused were beaten by public including the two scooterists and their pillion rider, they must have handed over open knife alleged to have been placed at the throat of victim (PW-3) to police official of PCR or to local police. It is not done so, because there was no such knife nor such incident took place, it proves the case is concocted one, otherwise question of open knife or folding knife would have come to light.
(E) That as per complainant, PW-3, it was two scooterists and their pillon rider who rescued him, besides police agreed presence of these two scooterists and large number of public at red-light crossing, still the prosecution did not brought to support truthfulness of prosecution version, then how could Ld. ADJ believe the version and how could court can come to conclusion to the correctness of the crime. It was absolutely one sided and wrong decision for no public witness was brought forwarded for deposition of correctness of the crime. Even not a single word either spoken or referred questioning police as to why police did not have them as witness since they (scooterists) were the first person to rescue the victim.
(F) That police personnel having arrived later to the spot after civilian and scooterists took control over the accused are duty bound to supply the names of those persons who took control over the three accused. Prosecution/police did not do so, hence there is doubt if at all such things/incident were happened or not? The incident took place between 9 to 9. 30 PM and police arrived after 10. 30 PM. It is unlikely that the gathered public/crowd would have stayed for one hour or the scooterists would have stayed for an hour so that they could hand over the culprit. Prosecution story seems to be fraud and not possible. Conviction based on such irrelevant considerations need to be set aside for no
such incident took place for no public would wait for an hour to hand over the culprit to police, if so why police did not took their names and produced as witnesses before court.
(G) That story states that accused attempting to run away not possible for accused was surrounded by public, including two scooterists and beaten by public. Under the circumstances, it is unlikely his attempt to run away from the spot. It is agreed by prosecution that accused along with other co-accused were captured by public and handed over to the police (PCR), hence injury was not due to the process of attempting to run away as alleged. He was dashed by possibly against hard object like well or beaten by blunt object on head (over right side skull). Such injury could be caused by such treatment and not by fall. Rather 3rd degree method to accept the use was employed against. (Forceful confession).
(H) That there is different version between PW-3 in his Asal Tehrir, FIR and that of statement before court. There is different version between police officials and PW-3 about knifes. That the question cycle "pulling" is something strange for a punctured cycle could only be pushed forward and can not be pulled. A person can only pull a thing towards himself in the sense if he was pulling the cycle, question of coming forward and standing of accused person before him is impossible. On pulling cannot a person moved backward. Hence attacking while going toward home (moving forwards) not plausible. There is material contradiction and it is serious as the versions cuts each other. PCR who first caught accused never speaks about knife nor those scooterists or public assembled there, while local police speaks about recovery of folding knife in accused pocket, complainant (PW-3) states that knife was pointed at his throat, itself a big contradiction and it seem knife was planted to make robbery for an offence Under Section 397 IPC. Appellant entitled to be acquitted in view of 1998 (1) JCC 108, Rahees Ahmad where material contradiction is too material as in this case.
PRAYER
It is most humbly prayed that this Hon’ble court may to admit be pleased the appeal and call for record for the perusal and of hearing the counsel for the appellant and to set-aside the conviction and sentence passed against the appellant and he be acquitted.
To pass any other order which this Hon’ble court deem fit and proper in the circumstances and in the interest of justice.
It is further prayed that pending final disposal of present appeal, this Hon’ble court please to release the appellant on bail and suspend the sentence passed against the appellant. For which act of kindness the humble appellant shall ever remain thankful to this Hon’ble court.
New Delhi
Appellant
Dated:
Through Advocate
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