IN THE HON'BLE HIGH
COURT OF DELHIAT NEW DELHI
(CRIMINAL APPELLATE
JURISDICTION)
Criminal Appeal No.
................2002
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, Den for the offence u/s 392/397/34 IPC and on conviction,
sentenced to undergo ko years; vide order dated 24-12-2001:
2. That the brief fact of prosecution leading to the trial
before the LD . ASJ in 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 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 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 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 …………..
complainant. No public witness, in spite 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:
(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 in possession of a big amount nor
they did not even tried to 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 took out money. On the other hand local police
states that (PW7……………in para 10 of
judgment) accused of a folding knife in his right pocket of his wear
contradiction. The PW-3 states in his statement before court that he was
pulling cycle as his cycle was punctured, whereas mentioned about this neither
in his Asal Tehrir nor in FIR improvement in his version, besides he states as 9/9-30 pm. before court whereas in FIR an
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 hand of accused Raju.
In his cross-examination, he did not remember anything. Who
took out money and diary-but agreed to have sealed diary of Rs. 60 note and (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 folding knife which the accused were
handed over to Do official by public nor PCR official spoke about open and
fold: 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 pilon 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 as witness since they
(scooterists) were the first person to 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 w over the three accused. Prosecution/police did not
do so hence there is doubt if at all such things/incident were 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 scoot stayed for an hour so that they could hand over 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 for
accused was surrounded by public, including two and beaten by public. Under the
circumstances, it is unlikely attempt to run away from the spot. It is agreed
by prose that accused along with other co-accused were captured by public and handed over to the police (PCR), hence
injury was not 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 assemble there, while local
police speaks about recovery of folding k accused pocket, complainant (PW-3)
states that knife pointed at his throat, itself a big contradiction and it seem
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 ma as in this case.
It is most humbly prayed that this Hon'ble court may
graciously be pleased to admit the
appeal and call for record for the perusal and of hearing for the appellant and
to set-aside the conviction and sentence passed appellant and he be acquitted.
To pass any other order which this Hon'ble court deem fit
and proper circumstances and in the interest of justice.
It is further prayed that pending final disposal of present
appeal, this Honable. 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 thankful to this Hon'ble court.
New Delhi
Dated:
Appellant
Through:
Advocate
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