JUDGMENT
P.K. Jain, J.
1. This judgment shall dispose of four criminal appeals (Nos. 466-SB, 503-SB, 504-SB and 507-SB of 1995) which are inter-connected and have arisen out of the same judgment.
2. Crl. Appeals Nos. 503-SB/95, 466-SB/95, 504-SB/95 and 507-SB/95 are directed against the judgment/order dated 26-7-1995/28-7-1995 passed by the Additional Sessions Judge, Bhiwani, whereby the four appellants, namely, Jahangir, Lachhman, Dharambir and Jitender have been convicted for the offences under Sections 392/397 of the I.P.C. and each of them has been sentenced to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs. 100/- and in default of payment of fine to undergo further rigorous imprisonment for a period of seven days under Section 397 of the I.P.C.
3. The prosecution case, as can be gathered from the record of the trial Court, is that on 8-9-1993, Nafis Khan, the complainant, after borrowing Maruti car No. DDD-685 from his friend Anil son of Umrao Singh, resident of Shahbad Mohammadpur, Delhi, went to meet his friend Sham Thapa, who is an employee in S. D. College, Dhaula Kuan, New Delhi. At about 3.30 p.m. when he was to come back, on a request made by Sham Thapa, he gave lift to his four friends for Basant Enclave, bus-stop. However, on further request by these friends of Sham Thapa, he stopped his car at Indira Gandhi Airport Road and asked them to get down. One ‘of the said persons, who was sitting besides him on the front seat, took out the keys of the car. The remaining three persons who were sitting on the rear seat dragged him on the rear seat and the person on the front seat started driving the car. By pointing out the pistol, the complainant was threatened to sit quietly. These persons came towards Dadri via Gurgaon and stopped the car at the approach road of the village, There the complainant was asked to surrender whatever he had. Thus, those four persons snatched a golden ring upon which his name ‘NK’ was inscribed and a sum of Rs. 600()/- from him. They also took away his shoes made of blue cloth upon which RIBOC was written and instead one of them gave him HAWAI CHAPPAL. Then those four persons escaped along with the said car.
4. The complainant reached the bus stand of village Imlota and narrated the incident to certain persons. He informed the police by telephone. Sub-Inspector Siri Bhagwan (PW9) along with other police officials reached the bus-stand and recorded the statement of Nafis Khan (Exhibit PC), on the basis of which first information report (Exhibit PC/1) came into existence. Site of occurrence was inspected and a telephone bill was seized therefrom vide recovery memo Exhibit PD/I. The chappals handed over to the complainant by one of the culprits were also taken into possession vide memo Exhibit PE.
5. On 18-9-1993 appellant Jitender was arrested. On 26-9-1993, in pursuance of a disclosure statement (Exhibit PK) made by appellant Jitender, one ring of gold (Exhibit P.2) was recovered which was seized vide memo Exhibit PL. On 9-10-1993 appellant Dharambir and Jahangir were arrested. On 10-10-1993, in pursuance of disclosure statement Exhibit PN made by Jahangirone knife (Exhibit P.4) and one number-plate of car DDD-685 (Exhibit P. 5) were recovered and were seized vide memo Exhibit PO. On 12-10-1993, appellant Lachhman was arrested and in pursuance of his disclosure statement (Exhibit PH).One stepney of Maruti car was taken into possession vide memo Exhibit PJ.
6. On 20-9-1993, the car in question which was found abandoned by Police of P.S. Narela (Delhi), was taken into possession in the present case vide memo Exhibit PG. On 1-10-1993 the number plate bearing registration No. DDC-2482 which was fictitiously attached with the car was taken into possession vide memo Exhibit PR. Site plan of the place of occurrence was prepared. After completing the investigation a charge sheet was submitted against the appellants.
7. On a secret information, appellant Dharambir was arrested on 9-10-1993 and was found to be in possession of one country-made pistol with one live cartridge. He was arrested in the present case and a separate case under Section 25 of the Arms Act was also registered against him. After completing the investigation in the case under the Arms Act, a separate charge-sheet against him was also submitted to the Court.
8. A charge under Section 397, Indian Penal Code, was framed against all the four appellants which they denied and claimed trial. A separate charge under Section 25 of the Arms Act was framed against the appellant Dharambir which he denied and claimed trial.
9. In support of its case the prosecution examined 11 witnesses. Shri Baljeet Singh, Judicial Magistrate I Class, Charkhi-Dadri, before whom the appellants were produced on 20-9-1993, 10-10-1993 and 13-10-1993, when they refused to participate in the proposed lest identification parade. Accordingly, their statements were recorded by the said Judicial Magistrate. Jai Parkash (PW 2) is the Patwari. He had prepared site plan (Exhibit P.B) in respect of the place of occurrence on the pointing out of the complainant Nafish Khan. ASI Bhan Singh (PW 4) had recorded formal first information report of this case, carbon copy of which is Exhibit PC/1. Anil Kumar (PW 5) has deposed that on 8-9-1993 his friend Nafish Khan had borrowed Maruti Car bearing No. DDD-685 which was snatched from him in a robbery and on its recovery he had taken the same on supurdari. ASI Attar Singh (PW 6) and HC Randhir Singh (PW 7) of Police Station North West, Samepur Badli (Delhi) have been examined in respect of seizing the abandoned vehicle in question on 19-9-1993 and then handing it over to S. Siri Bhagwan on 20-9-1993 in this case. H.C. Des Raj (PW 8) was joined in the investigation of this case when the appellant Lachhman was interrogated. In pursuance of his disclosure statement a stepney was recovered. H. C. Ranjit Singh (PW 10) was joined in the investigation on 26-9-1993 when in pursuance of his disclosure statement made by appellant Jitender a ring made of gold (Exhibit P.2) was recovered. Deepak Bhardwaj (PW 11) was the registered owner of the car in question. On 1-10-1993 the police had taken into possession the fake number plate bearing No. DDC 2482 from this car. Nafish Khan (PW 3) is the complainant and S. I. Siri Bhagwan (PW 9) is the Investigating Officer.
10. After the close of the prosecution case, the appellants were examined under Section 313 of the Code of Criminal Procedure. Each of the four appellants denied the allegations of the prosecution. pleaded innocence and stated that they had been falsely implicated in the case. Dharambir has denied that any article much-less any country made pistol or cartridge was ever recovered from him.
11. The trial Court, while accepting the evidence produced by the prosecution and disbelieving the defence version, convicted and sentenced the appellant, as stated above. Feeling aggrieved, the appellants have challenged their conviction and sentence.
12. I have heard Sarvshri J. S. Mann, Ramesh Hooda and J.S. Dhillon, Advocates, learned counsel on behalf of the appellants and Shri P. S. Sullar, learned Assistant Advocate General, for the State of Haryana, who have taken me through the record of the trial Court.
13. It is a cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution. At the conclusion of the trial, the prosecution can succeed only on discharging this burden of proving of case against the accused. Strongest of suspicion docs not constitute the proof required. This principle is so well-settled that it hardly requires reference to any judicial pronouncement. However, the leading judgment of the apex Court on the subject is reported as K.M. Nanawati v. State of Maharashtra AIR 1962 SC 605 : 1962(1) Cri LJ 521.
14. Turning to the case in hand, it may be stated that the prosecution was bound to prove; that the appellants had committed the -alleged robbery and the articles alleged to have been recovered are the stolen property in respect of that robbery. In other words the prosecution was under a legal obligation to prove the identity of the appellants as to be robbers and identity of ring, stepney, and number plate to be stolen property of that robbery.
15. Admittedly, the best person to establish the identity of the culprits is the complainant Nafish Khan who has been examined at the trial as PW 3. After narrating the incident as contained in the first information report, Nafish Khan (PW 3) has categorically stated that he cannot say whether the accused persons on trial had robbed him since they had put his head downward on the rear seat. In his cross-examination also he has stated that he cannot say whether the accused persons were the robbers. Thus, the main witness of the prosecution has not stated that the appellants or any one of them had robbed him of ring and cash amount on the day of occurrence. This witness was never declared to be hostile nor the prosecution sought permission) to cross-examine him in this respect. Therefore, the testimony of Nafish Khan complainant is of no help to the prosecution in establishing the identity of the appellants to be the robbers.
16. The second person who could have been the best witness to identify those robbers is Sham Thapa, because those four persons were the friends of Sham Thapa and it was at his instance that Nafish Khan had given lift to those four persons upto the place of occurrence. Sham Thapa has not been examined by the prosecution on the ground that he had been won over by the appellants. Therefore, the best evidence to establish the identity of the robbers has not been produced, and if produced has not supported the prosecution case against the appellants.
17. From a bare perusal of the impugned judgment, it is evident that the trial Court has given a finding that the appellants are fully connected with the offence in question by the recovery of the ring (Exhibit P.2), stepney of the Maruti car and the original number plate of the said car (Exhibit P.5). The trial Court evidently Committed a grave error in giving this finding. The reasons are more than one. In the first place, the ring (Exhibit P.2) was not shown to Nafish Khan-the complainant when he was examined at the trial as PW 3, nor he has ever stated that this was his ring and the same was taken away by the culprits in the incident in question. There is no reasonable or plausible explanation given by the prosecution as to why not this ring (Ex.P.2) was shown and put to this witness which could have been the best link evidence to connect at least appellant Jitender with the commission of the offence in question. In other words, the prosecution has failed to prove that the ring (Exhibit P.2) is the stolen property of the incident in question.
18. Similarly, the stepney alleged to have been recovered in pursuance of the disclosure statement made by appellant Lachhman and the original number plate (Exhibit P.5) alleged to have been recovered in pursuance of appellant Jahangir were not put and shown to Anil Kumar (PW 5), from whom the complainant had borrowed this car on the day of occurrence. Similarly, these two articles were not shown and put to Deepak Bhardwaj (PW 11) who is the registered owner of the car. Stepney and number plate are easily available in the market and can be introduced to make out a case against the accused person. There are no specific marks of identification on either of these two articles, nor these two articles are claimed to be stolen property either by Anil Kumar (PW 5) or Deepak Bhardwaj (PW 11). In other words, the prosecution has utterly failed to prove that the ring-Exhibit P.2 number plate-Exhibit P5 and the stepney are the stolen property of the alleged robbery in question.
19. From the above discussion, it is clear that neither the identity of the appellants to be the persons responsible for committing the alleged recovery (robbery) has been established nor the identity of the ring-Exhibit P.2, number plate-Exhibit P.5 and the stepney has been established to be the stolen property of the said robbery. The prosecution has miserably failed to prove any of the ingredients of the offence of robbery and the participation of the appellants therein.
20. Coming to the charge under Section 25 of the Arms Act against Dharambir appellant, it is enough to say that no public person was joined at the lime when the alleged country made pistol with a live cartridge is alleged to have been recovered from him. Moreover, the Investigating Officer has admitted in his cross-examination that he had not converted the recovered country made pistol and the cartridge in any sealed parcel. This admission on the part of the Investigating Officer is fatal to the prosecution of appellant Dharambir for the offence under Section 25 of the Arms Act. The obvious reason is (hat no sanctity is left to the recovery of the alleged articles. Therefore, the conviction of appellant Dharambir even for the offence under Section 25 of the Arms Act is not sustainable on facts and in law.
21. As a result of the above discussion, these appeals are allowed. The conviction and sentence of all the four appellants under Sections 392/397, Indian Penal Code, are set aside and they are acquitted of the said charge. The conviction and sentence of appellant Dharambir under Section 25 of the Arms Act are also set aside and he is acquitted of the said charge. The appellants shall be released forthwith, if not wanted in any other case.