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2013 DIGILAW 484 (DEL)

Ram Gopal v. State (NCT, Delhi)

2013-03-06

S.P.GARG

body2013
JUDGMENT : S.P.Garg, J. 1. The appellant- Ram Gopal challenges conviction under Section 397/34 IPC in Sessions Case No.97/1998 arising out of FIR No. 166/1994 PS Vivek Vihar. Vide order dated 07.09.1999, he was sentenced to undergo RI for seven years with fine Rs. 5,000/-. 2. On the night intervening 13/14.06.1994, Daily Diary (DD) was recorded at Police Post Anaj Mandi on getting information of dacoity in House No.5/34, Bara Bazar, Shahdara. SI Surender Dev with police staff went to the spot. He recorded statement of Vinod Kumar Bansal who disclosed that at around 03.00 A.M., five boys entered the house; two were having knives; two were armed with iron rod and one was having iron punja. He named Ram Gopal @ Kalia who used to work in an adjacent shop at Lahori Gate, Delhi as one of the assailants. He assigned specific role to him i.e. he pointed out knife at his neck and demanded keys from his wife. They were threatened by the assailants. Jewellery and cash was robbed. VCP and stereo deck were recovered from Chottey Lal who was apprehended near the spot. Other assailants fled the spot. 3. During the course of investigation, the police apprehended the assailants. Ram Gopal was apprehended on 24.06.1994 by PW-5 (ASI Partap Singh), and from his possession a wrist watch robbed from of the complainant’s house was recovered. A separate case under Section 25 Arms Act was registered for recovery of knife from him. Disclosure statements of the co-accused were recorded and some robbed articles were recovered at their instance. On completion of the investigation, a charge-sheet was submitted against six accused persons, Chottey Lal, Ram Gopal, Ram Kilari, Lal Singh, Bal Kishan & Udal. They were duly charged and brought to trial. The prosecution examined fifteen witnesses. In their 313, Cr.P.C. statements, the accused pleaded innocence and false implication. On appreciating the evidence and considering the rival contentions of the parties, the Trial Court, by the impugned judgment, acquitted Ram Kilari, Lal Singh, Bal Kishan and Udal. Chottey Lal and Ram Gopal were convicted and sentenced. Being aggrieved, Ram Gopal has preferred the appeal. 4. Learned counsel for the appellant urged that the Trial Court did not appreciate the evidence in its true and proper perspective. There was no cogent and reliable evidence against the accused to convict him for the incident. Chottey Lal and Ram Gopal were convicted and sentenced. Being aggrieved, Ram Gopal has preferred the appeal. 4. Learned counsel for the appellant urged that the Trial Court did not appreciate the evidence in its true and proper perspective. There was no cogent and reliable evidence against the accused to convict him for the incident. The Trial Court did not consider the vital discrepancies and contradictions in the statements of the prosecution witnesses. Learned APP urged that Ram Gopal was named in the statement (Ex.PW-1/A), made to the police at the first instances. Complainant- Vinod Kumar Bansal had no animosity to falsely implicate him in this case. Wrist watch robbed from the house of the complainant was recovered from his possession. 5. I have considered the submissions of the parties and have examined the record. It reveals that benefit of doubt was given to Ram Kilari, Lal Singh, Bal Kishan and Udal, and they were acquitted. The Trial Court in the impugned judgment criticised the Investigating Officer for not conducting the investigation properly. It highlighted various defects in the investigation and desired that the Director of Prosecution/Chief Public Prosecutor should hold enquiry for the conduct of SI Surender Dev and ASI Lal Chand for material irregularities and illegalities committed by them regarding preparation of documents at the police station; non holding of TIP of the offenders and case property. 6. It is true that Ram Gopal was named by the complainant in the statement (Ex.PW-1/A). He also attributed specific role to him that he put a knife at his neck. However, while appearing as PW-1, complainant did not support the version given to the police in the statement. He did not depose that Ram Gopal had entered inside the house or had put knife at his neck. He rather introduced a new version that the appellant did not enter inside the house and remained present outside the house. The prosecution failed to reconcile this material inconsistency. If the appellant had not entered the house, it is unclear how he was recognised and identified by the complainant and under what circumstances he was named in the First Information Report. PW-2 (Madhu) complainant’s wife turned hostile on all material facts and declined to identify any assailants including Ram Gopal. She did not testify that she had seen Ram Gopal inside or outside the house. PW-2 (Madhu) complainant’s wife turned hostile on all material facts and declined to identify any assailants including Ram Gopal. She did not testify that she had seen Ram Gopal inside or outside the house. There are other discrepancies in the prosecution case as the complainant in the First Information Report gave number of assailants as five. However, in his deposition in the Court, he gave their number eight. He also admitted in the cross-examination thatsome of the assailants were known to him earlier. However, he did not name any other assailant. 7. The accused was arrested on 24.06.1994. PW-5 (ASI Partap Singh) deposed that on 24.06.1994 when he with SI Surender Dev and other staff was present in the area in connection of investigation of the incident, Ram Gopal was arrested and was found in possession of sping actuated knife for which a separate case was registered. He was interrogated and his disclosure statement (Ex.PW-5/A) was recorded. The accused pointed out the place of occurrence (Ex.PW-1/N). In the cross-examination, complainant Vinod Kumar Bansal gave entirely inconsistent version and stated that Ram Gopal was arrested in his presence by the police of PS Lahori Gate. Thereafter, police of PP Anaj Mandi was informed by them and they took him (Ram Gopal) to Police Post Anaj Mandi. Ram Gopal took them to the place where he had sold the robbed articles including jewellery but nothing was recovered from there. PW-5 also did not depose if any robbed article was recovered from the possession of the accused or at his instance. Other police witness came up with the plea that one wrist watch was recovered from the accused which he was wearing. The recovery of wrist watch is suspicious. There was no specific mark of identification over it. No application was moved to getthe wrist watch identified in the Test Identification Proceedings. It is unbelievable that the accused who was named in the First Information Report would volunteered to visit the area in question after ten days of the incident and continue to wear the alleged robbed wrist watch on his wrist. No substantial jewellery article was recovered from his possession or at his instance. 8. It is unbelievable that the accused who was named in the First Information Report would volunteered to visit the area in question after ten days of the incident and continue to wear the alleged robbed wrist watch on his wrist. No substantial jewellery article was recovered from his possession or at his instance. 8. In the light of above discussion and taking into consideration the various defects in the investigation highlighted in the impugned judgment, and insufficient evidence collected against the present appellant, conviction and sentence of the appellant, cannot be sustained. The appeal is accepted and the conviction and sentence are set aside. The bail bond and surety bond of the appellant stand discharged. 9. The Trial Court record be sent back forthwith.