Credibility of eyewitness testimony is crucial for conviction; inconsistencies can lead to wrongful acquittals.

JUDGMENT :

MANOJ KUMAR OHRI, J.

1. The present appeals have been instituted under Section 374 (2) of the Cr.P.C. seeking setting aside of the judgment of conviction dated 04.08.2021 and order on sentence dated 06.08.2021 passed by the learned ASJ-02, East District, Karkardooma Courts, Delhi in Session Case No.3550/2019 pertaining to case arising out of FIR No.163/2019 registered under Sections 392/34 IPC at PS-Mayur Vihar, Delhi.

2. While both the appellants were convicted for the offence under Section 392/34 IPC, the appellant/Naushad was additionally convicted for the offence under Section 397 IPC. While the appellant/Naushad was sentenced to rigorous imprisonment for 7 years, the appellant/Salman was sentenced to undergo rigorous imprisonment for a period of 4 years. Both the appellants were also directed to deposit fine of Rs.10,000/- with the State and in default of payment of fine, they were directed to undergo simple imprisonment for a further period of three months.

As both the appellants have been convicted and sentenced vide a common judgment, the appeals are disposed of vide a common judgment.

3. The incident came into light on receipt of an information from the complainant/Ram Kishore and recorded as GD no. 46A on 16.05.2019 at 13:51:39 hrs. In the description of the incident, it was mentioned that the caller had been robbed of four gold rings and cash of Rs.5,000/- on the flyover near foot over bridge, Mayur Vihar, Phase-1. The aforementioned DD was assigned to ASI Sunil Kumar, (PW7) who accompanied by Constable Pradeep, reached the spot, however, the complainant citing urgency left the spot without giving any statement to the police officials. The inquiry in the incident was later, assigned to SI Manoj Kumar Tomar (PW-9) vide GD No.85A (Ex.PW3/B) on 16.05.2019 at 21:40:32 hrs. On that night, the statement of the complainant was recorded under Section 161 of Cr.P.C. wherein he stated that he was robbed of 4 gold rings weighing about 20 grams and Rs.5010/- at gunpoint.

4. Though FIR was initially registered under Section 392/34 IPC, the charge was framed under Section 392/397/34 IPC against the appellant/Naushad @ Bombay and under Section 392/34 IPC against the appellant /Salman @ Bappi.

5. The record reveals that the appellant/Naushad came to be arrested on 17.07.2019 in another case i.e., FIR No.231/2019 registered at PS Mayur Vihar wherein he was found in possession of pistol with one live cartridge and stolen scooty of make Activa, Honda. Thereafter, the appellant, on his disclosure about his involvement in the subject FIR, came to be arrested. When he disclosed about having committed the offence with his associate the appellant/Salman was also arrested on the same day.

6. The prosecution examined the complainant as PW-1. In his testimony, the complainant stated that on 16.05.2019, while he was going to Bhagirath Palace, Chandni Chowk on a motorcycle and had reached in front of Manas Apartment, the appellants came from behind on a scooty and enquired from him about the way to reach Seelampur. The appellants had put their scooty in front of his motorcycle. The driver of the scooty took out the key of his motorcycle. While pointing towards the appellant/Naushad, the complainant stated that he was the pillion rider who had put a pistol on his waist. While pointing out the appellant/Salman, the complainant stated that he was the driver of scooty who robbed him of four gold rings and cash of Rs.5010/-. The appellants fled after committing the crime. He called PCR at 100 number, which reached the spot within 10 minutes. The police staff from PS Mayur Vihar also arrived at the spot. He accompanied the police officials to the police station. Since he had some urgent work, he left police station without giving any statement. Later, that day, his statement was recorded at the police station. As he had not stated about some facts, leading questions were allowed to be put