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
2412-2001:
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 coaccused....................... 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 coaccused 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
[CD1]CRIMINAL APPEAL
1 Comments
Please give it in PDF
ReplyDeleteThank you for your response. It will help us to improve in the future.