Tota Ram @ Boni vs The State
2013 Latest Caselaw 763 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    RESERVED ON : January 28, 2013
                                    DECIDED ON : February 15, 2013

+      CRL.A. 58/2001
       TOTA RAM @ BONI                                         ..... Appellant
                              Through : Mr.Sandeep Sharma proxy counsel
                                       for Mr.Saurabh Sharma, Advocates.

+      CRL.A. 339/2000

       RAMESH KUMAR                                            ..... Appellant

                              Through : Mr.Ajay Vir Singh Jain with Mr.Atul
                                        Agarwal, Mr.Deepak Jain and
                                        Mr.U.R.Bokadia, Advocates.
+      CRL.A. 338/2000

       RAVINDER SINGH                                  .... Appellant

                              Through : Appellant in person.

                              Versus

       THE STATE                          ..... Respondent in all Appeals

                      Appearance :     Mr.M.N.Dudeja, APP for the State.
                                       Insp. Mahendru K.Mishra, PS Sarai
                                       Rohilla.

        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Tota Ram @ Boni (A-1), Ramesh Kumar (A-2), Ravinder

Singh (A-3) and Ashwani Kumar @ Ashu were arrested by the police of

Police Station Sarai Rohilla and were challaned to the Court for trial for

committing offence punishable under Sections 393/394/397/34 IPC. In

nutshell the prosecution case is under:-

2. Daily Diary (DD) No.63B (Ex.6/P) was recorded at Police

Station Sarai Rohilla on 28.09.1996 at 11:40 P.M. on getting information

from Constable Pavinder Singh (PW-3) that Manoj Kumar had admitted

Deepak in injured condition at Hindu Rao Hospital. The investigation

was assigned to Head Constable Suraj Bhan who with Constable Pavinder

Singh went to the hospital. In his statement, injured Deepak disclosed that

when he was coming back to his house at 10:30 P.M. after taking juice, at

the corner of his house in Gali No.3, 3/4 boys were present. A-1, who

was known to him, asked him to stop and inquired from him as to how

much money he had. He replied in the negative. On that A-1 put his hand

in his pocket and grappled with him. A-1 inflicted injury on his back with

some sharp object. His three associates who were present there also

caught hold of him. The incident was witnessed by Manoj Kumar. The

assailants fled the spot. During the course of investigation A-1, A-2, A-3

and Ashwani Kumar were arrested and their disclosure statements were

recorded. The IO recorded the statements of the witnesses conversant

with facts and after completion of investigation submitted a charge-sheet

against them in the court. They were duly charged and brought to trial.

The prosecution examined seven witnesses. In their 313 statements, the

accused pleaded false implication. On appreciating the evidence and

considering the rival contentions of the parties, the Trial Court by the

impugned judgment convicted A-1 to A-3 and acquitted Ashwani Kumar.

Being aggrieved, the appellants have preferred the appeals.

3. I have heard the learned Additional Public Prosecutor and the

learned counsel for the appellants and have examined the record. On

scrutinizing the testimony of witnesses it reveals that there are vital

discrepancies and contradictions. The conviction is based upon the sole

testimony of the complainant. PW-1 (Deepak) in his statement (Ex.PW-

1/A) categorically mentioned that the incident was witnessed by his friend

Manoj Kumar who admitted him in the hospital. However, Manoj Kumar

was not examined. No explanation has been offered by the prosecution

for withholding material witness Manoj Kumar. PW-1 (Deepak) gave a

contradictory version in his testimony and stated that his friend Manoj

Kumar came at the spot after he fell down due to injuries and admitted

him in the hospital. He did not claim that the incident was seen by Manoj

Kumar. The prosecution failed to reconcile the two version.

4. In his statement (Ex.PW1/A) the complainant did not reveal

exact number of assailants. The police apprehended A-1 to A-3 and one

Ashwani Kumar during investigation and charge-sheeted them. PW-1

(Deepak), however, exonerated Ashwani Kumar completely and did not

identify him to be one of the assailants. Learned Additional Public

Prosecutor, after seeking court's permission, cross-examined him on this

aspect. In the cross-examination, he denied that Ashwani was one of the

assailants. The prosecution failed to convince as to how and under what

circumstances Ashwani's name surfaced in the incident. The prosecution

failed to offer any explanation as to why PW-1 (Deepak) resiled from his

previous statement to give clean chit to Ashwani. After recording the

statement of PW-1 (Deepak), Rukka (Ex.PW-6/B) was prepared and First

Information Report for commission of offence under Section 324/34 IPC

was recorded. It is not clear as to when and why Sections 393/394/397

were added. The victim at the first instance did not attribute any specific

role to A-2 and A-3 and Ashwani Kumar. They were not known to him.

No application for Test Identification Parade was moved for their

identification. No weapon of offence was recovered at the instance of

any accused. The complainant was not deprived of any money. It is

highly unbelievable that A-1, who was already known to the complainant,

would attempt to commit robbery particularly when the victim had no

money with him. It appears that there was a quarrel between the

complainant and the assailants in which he was injured. It seems that the

victim did not present true facts.

5. In the court the victim gave wavering statement. When he

was examined on 19.01.1998, he implicated A-1 to A-3 but exonerated

Ashwani Kumar completely. He did not assign any role to Ashwani

Kumar in the incident. He did not depose that the occurrence was

witnessed by Manoj Kumar. He did not hand over his blood stained

clothes to the police. When he was examined on 20.09.1999, he admitted

that due to darkness, he was unable to identify the assailants. His further

examination was deferred on his request. When he again appeared on

12.10.2009, he introduced another version and stated that nobody came to

rescue him and subsequently, his friend Manoj Kumar admitted him in the

hospital. He further deposed that he had given his earlier statement in the

court on the asking of the Police Officer/Investigating Officer and was

tutored outside the court. It seems that the complainant is changing his

version time and again and no implicit reliance can be placed on his sole

testimony to convict the accused for serious offence under Section

393/394/397 IPC. The ingredients of robbery has not been established

against all the accused.

6. In the light of the above discussion, I am of the view that the

prosecution has failed to adduce cogent and reliable evidence to establish

the guilt of the accused persons beyond reasonable doubt. Giving benefit

of doubt, the appeals are allowed and the conviction and sentence of the

appellants are set aside. Bail bonds and surety bonds of the appellants

stand discharged.

7. Trial Court record be sent back forthwith.

(S.P.GARG) JUDGE February 15, 2013 sa