Ram Gopal vs State (Nct, Delhi)
2013 Latest Caselaw 1107 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : 18th February, 2013
                               DECIDED ON : 6th March, 2013

+                        CRL.A.561/1999

      RAM GOPAL                                     ....Appellant
              Through :         Mr.Javed Ahmed, Advocate.

                                versus

      STATE (NCT, DELHI)                     ....Respondent
               Through : Mr.M.N.Dudeja, APP.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

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 ` 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. 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. 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 that

some 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 get

the 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. 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.

(S.P.GARG) JUDGE MARCH 06, 2013 tr