Kamlesh Kumar @ K.K. vs The State (Government Of N.C.T. Of ...
2013 Latest Caselaw 5360 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                              RESERVED ON : 27th SEPTEMBER, 2013
                              DECIDED ON : 21st NOVEMBER, 2013

+      CRL.A. 232/2003
       KAMLESH KUMAR @ K.K.                                ..... Appellant
                            Through :   Mr.Vivek Vidyarthi, Advocate
                                        along with appellant in person.
                            versus

       THE STATE (GOVERNMENT OF N.C.T. OF DLEHI)
                                               ..... Respondent
                     Through : Mr.Lovkesh Sawhney, APP.

+      CRL.A. 352/2003
       SHER SINGH                                          ..... Appellant
                            Through :   Mr.Mukul Sharma, Advocate along
                                        with appellant in person.
                            versus

       THE STATE (DELHI ADMINISTRATION)        ..... Respondent
                     Through : Mr.Lovkesh Sawhney, APP.

+      CRL.A. 258/2003
       SUDESH                                              ..... Appellant
                            Through :   Mr.Mukul Sharma, Advocate along
                                        with appellant in person.
                            versus

       THE STATE (GOVT. OF NCT OF DELHI)       ..... Respondent
                     Through : Mr.Lovkesh Sawhney, APP.

CRL.A.No.232/2003 & connected appeals                          Page 1 of 14
 +     CRL.A.299/2003
       RAJ KUMAR                                          ..... Appellant
                            Through :   Mr.Madhu Mukul Tripathi,
                                        Advocate along with appellant in
                                        person.
                            versus

       THE STATE                                        ..... Respondent
                            Through :   Mr.Lovkesh Sawhney, APP.

AND
+   CRL.A. 422/2003
       SARFRAJ                                            ..... Appellant
                            Through :   Mr.Mukul Sharma, Advocate along
                                        with appellant in person.
                            versus

       THE STATE                                        ..... Respondent
                            Through :   Mr.Lovkesh Sawhney, APP.

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

S.P.GARG, J.

1. Kamlesh Kumar @ K.K. (A-1), Sher Singh @ Lal (A-2),

Sudesh @ Tyson (A-3), Raj Kumar (A-4) & Sarfraz (A-5) were arrested

in case FIR No. 278/98 for committing offences punishable under

Sections 458/392/394/397/34 IPC and 25 Arms Act registered at PS

D.B.G. Road and sent for trial on the allegations that on the night

intervening 13/14.09.1998 at about 02.45 A.M. at House No. L-19A, Loco

Shed Railway Colony, Kishan Ganj, Delhi, they while armed with deadly

weapons committed dacoity and robbed ` 45,000/-, 1 kg silver ornaments,

one gold ring and other gold ornaments after inflicting injuries to Vijay

Shankar and his nephew Babloo. Police machinery was set in motion

when Daily Diary (DD) No.8 was recorded at Police Post Shidi Pura on

getting information from duty constable about admission of Vijay Shankar

and Babloo in injured condition in Hindu Rao Hospital. The investigation

was assigned to HC Rakesh Kumar who with Const. Sohan Lal went to

the hospital and collected their MLCs. After recording Vijay Shankar's

statement (Ex.PW-1/A), he lodged First Information Report by making

endorsement (Ex.PW-11/A) thereon. SI Ram Chander took over the

investigation of the case. The crime team inspected the spot and took

photographs. Soon thereafter, the Investigating Officer received secret

information that the culprits were hiding on a roof of a double storey

building at Railway colony, Kishan Ganj near Shiv Mandir. Acting on the

secret information, SI Ram Chander apprehended A-5 from the roof of

House No. L-126, Loco Shed, Railway Colony, Kishan Ganj, Delhi and

recovered a bag which contained a desi katta, dagger, currency notes,

articles of gold and silver. Pursuant to A-5's disclosure statement, A-1 to

A-4 were apprehended and arrested. Statements of the witnesses

conversant with the facts were recorded. After completion of

investigation, a charge-sheet was filed against them for committing the

aforesaid offences in the Court. They all were duly charged and brought to

trial. The prosecution examined sixteen witnesses to prove its case. In

their 313 statements, the appellants pleaded false implication and refuted

the prosecution's allegations of their complicity in the crime. DW-1

(Const. Dev Narain) and DW-2 (Shiv Shankar) were examined in defence.

The trial resulted in conviction of all under Section 397/458/34 IPC vide

judgment dated 20.03.2003. Various prison terms with fine were awarded

by an order dated 25.03.2003. Being aggrieved, they have preferred the

appeals.

2. I have heard learned counsel for the parties and have

examined the record. The appellants have not seriously challenged the

incident in which complainant Vijay Shankar and his nephew Babloo

were assaulted and deprived of their valuable articles but have denied

their complicity in the crime. The complainant Vijay Shankar had no

ulterior motive to fake the incident of robbery in which not only he and

his nephew Babloo were injured but they were robbed of their cash and

jewellery articles. The incident was reported to the police promptly

without any delay and the First Information Report was lodged at 05.30

A.M. Vijay Shankar and Babloo were taken to Hindu Rao Hospital and

were medically examined. PW-8 (Jai Bhagwan), Medical Record

Technician proved MLCs (Ex.PW-8/A and Ex.PW-8/B) prepared by

Dr.Dinesh Kumar Sharma. Daily Diary (DD) No. 8 was recorded at Police

Post Sidhi Pura on getting information about their admission in the

hospital from the duty constable posted there. In the complaint (Ex.PW-

1/A), Vijay Shankar gave graphic detail of the occurrence without naming

the assailants. Neither the complainant nor any other inmate in the house

suspected the involvement of any acquaintance in the occurrence.

Statements of Vijay Shankar, Deepa and Babloo were recorded prior to

the apprehension of the culprits but none of them named the culprits as

suspect. They also did not describe broad physical features/description of

the assailants. The complainant claimed to identify culprits but did not

disclose as to how, he would be capable to recognise them in the absence

of any specific features observed by him. The police on the basis of secret

information received at about 07.00 / 07.30 A.M. allegedly apprehended

and arrested A-5 and recovered the robbed articles from his possession.

Subsequently, at his behest, A-1 to A-4 were taken into custody.

3. Indisputably, A-1 is the close relation of the complainant

being the brother-in-law (Dever) of his daughter. It has come on record

that there was a marriage proposal of Pinki (daughter of complainant's

brother Suresh Chand) with Mithlesh Kumar, A-1's brother. It is not

denied that on the day of marriage Mithlesh Kumar ran away and the

marriage could not be celebrated. Pinki was married to Upender, younger

brother of the complainant's Behnoi. Apparently, A-1 was acquainted

with the complainant and his family members prior to the incident. The

complainant though narrated the incident minutely in the statement

(Ex.PW-1/A) and assigned specific role to the each assailant but omitted

to name A-1 to be one of the assailants. The complainant had direct

confrontation with the culprits for sufficient duration and had sufficient

and clear opportunity to see them, however, A-1 was not at all named as

suspect in the First Information Report. It has come on record that A-2 to

A-5 were also residing in the said locality / vicinity since long. Even none

of them was suspected to be the assailant. PW-2 (Babloo) in his Court

statement categorically declined to identify and recognise any of the

appellants as assailants. He claimed that his uncle Vijay Shankar knew

three intruders but he was not aware of their identity. Strange enough,

Addl. Public Prosecutor did not opt to cross-examine the witness after

seeking Court's permission as he resiled from the previous statement

made to the police under Section 161 Cr.P.C. during investigation. PW-2

(Babloo), complainant's nephew had no extraneous reasons to demolish

the prosecution case. PW-7 (Deepa), complainant's wife gave a wavering

statement regarding identification of the appellants in the Court. She

deposed that on the night of occurrence, she had identified Kamlesh (A-1)

as one of the assailants being their relative. About other assailants, at first

instance, she expressed inability to recognise them. She admitted that

when the police had shown all the accused persons she was able to

identify only A-1. She identified A-2 to A-5 in the Court simply because

the police had arrested them in this case and she was satisfied that they

must have been rightly apprehended by the police. She again reiterated

that she was not sure regarding identification of A-2 to A-5. She did not

offer any explanation as to why in her statement recorded on the day of

incident under Section 161 Cr.P.C. she did not name A-1 though he was

known to her being close relative. A-1 was not apprehended at the

instance of this witness. In the cross-examination, she disclosed that A-1

was not named due to fear. Since the police machinery had come into

motion soon after the occurrence, there was no occasion for the witness to

be under fear not to name the assailants particularly A-1 in her statement.

PW-1 is the complainant who identified A-1 to A-5 as assailants in his

Court statement. He admitted that on the night of occurrence he could

identify only A-1 out of the five assailants. The identity of A-2 to A-5 was

not known to him. In the cross-examination, he admitted that A-1 and A-2

were known to him before the incident. He further admitted that his

brother Maharaj Pujari was a tenant under A-3's father. However, he did

not submit any plausible reason for not naming them in the statement

(Ex.PW-1/A). He also did not give description of the assailants for

identification purpose. He further admitted that A-1, A-2 and A-5 lived in

the same locality i.e. Railway Colony and he had seen them by face before

the occurrence. He further admitted that none of the assailants was in

muffled face at the time of incident. Thus, there was no occasion for the

complainant to omit the name of the assailants known to him prior to the

occurrence in the First Information Report.

4. Early reporting of the occurrence by the informant with all its

vivid details gives an assurance regarding truth of the version. In the case

of 'Jai Prakash Singh v.State of Bihar & Anr.', 2012 CRI.L.J.2101 the

Supreme Court held :

"The FIR in criminal case is vital and valuable piece of evidence though may not be substantive piece of evidence. The

object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question."

5. After the occurrence all the assailants fled the spot with the

booty and none of them could be apprehended at the spot. Vijay Shankar

did not inform the police soon after the occurrence and awakened his

neighbour Lal Chand who took him and Babloo to hospital. Lal Chand has

not been examined and no explanation has come forthwith as to why the

serious occurrence / incident was not reported to the police immediately.

The rukka was sent at about 05.30 A.M. and the investigation was taken

over by SI Ram Chander. Strange enough, without any cogent inputs

regarding the identity of the suspects, he was able to solve the incident at

07.00 or 07.30 A.M. when on the basis of a secret information A-5 was

apprehended from the roof of the House No. L-126, Loco Shed, Railway

Colony, Kishan Ganj, Delhi. Prosecution witnesses have given

inconsistent version as to how and under what circumstances, A-5 was

apprehended and the robbed articles were recovered from his possession.

No independent public witness including the owner of the house was

associated despite their availability at the time of conducting proceedings

on the roof. It is unclear as to why A-5 who was not under suspicion

would hide on the roof with stolen / robbed articles and inmates of the

house would not come to know about his presence there. None of the

other assailants was found in possession of any robbed article and none of

them attempted to flee from their respective houses. It is unbelievable that

A-1 to A-4 would allow A-5 to retain all the robbed articles and would not

share the booty. Contradictory statements have emerged as to whether the

robbed articles were recovered from A-5's possession or he recovered it

from underneath the waste articles lying on the roof. The roof was

accessible to all the inmates of the house. There was no specific mark of

identification on the robbed articles. Police did not offer any explanation

as to why the entire cash of ` 45,000/- robbed could not be recovered

despite apprehension of all the suspects soon after the incident.

Application was moved by the Investigating Officer for conducting Test

Identification Proceedings of the case property. The learned Magistrate

directed the Investigating Officer to produce the property 'similar' to case

property to mix for identification proceedings. However, the Investigating

Officer could not arrange the 'similar' property to be mixed with the case

property and consequently the Test Identification Proceedings could not

take place. Adverse inference is to be drawn against the prosecution for

not making available the 'similar' case property for identification purpose.

6. The material prosecution witnesses have given different

version in their statements in the Court regarding the actual sequence of

occurrence inside the house. There are conflicting statements as to the

period since when PW-2 (Babloo) had started residing with the

complainant in the house in question. PW-2 (Babloo) disclosed that on the

night intervening 02.30 to 02.45 A.M. on seeing an intruder, he got Vijay

Shankar and his wife awakened. Thereafter, two intruders barged in the

room and demanded keys from his uncle Vijay Shankar. When he (Vijay

Shankar) refused to hand over the keys, he was beaten. When he

intervened, he was stabbed on his back thrice. He did not know what was

stolen on that night. In all, there were three intruders and he was not aware

if any other suspect was outside the house. PW-7 (Deepa) on the other

hand disclosed that at about 02.30 A.M. she got up and noticed that one

intruder was opening the steel almirah lying in the room. She made

Babloo got up and informed him about the presence of a stranger in the

room. Babloo got up and grappled with that person and made him to fall

on the ground. By the time, her husband had also got up and he asked

Babloo to beat that intruder. At that point of time, four more persons

entered inside the room and three of them started assaulting Babloo with a

knife. When her husband told the intruders that he had no cash, he was

stabbed with a knife. Complainant (PW-1) narrated another version of the

occurrence and deposed that at about 02.30 A.M. (mid-night) he heard

commotion and saw an intruder opening a steel almirah. His wife and

nephew got up. They were surprised to see four persons inside the house.

Babloo grappled with that intruder. Babloo was assaulted with the knife

resulting in three stab wounds on the back. Within a second, he was

assaulted with knife and was given two stab wounds on the head.

Apparently, all these witnesses have given contradictory versions

regarding their confrontation with the assailants inside the house. It

appears that the prosecution witnesses have not presented true facts

regarding the incident and have suppressed some material facts. It is

unclear as to what was the nature of injuries suffered by the victims.

Original record is not traceable and the reconstructed record does not

contain the MLCs of the injured. PW-8 (Jai Bhagwan) is a Medical

Record Technician from the Hindu Rao Hospital who merely proved the

MLCs (Ex.PW-8/A and Ex.PW-8/B) prepared by Dr.Dinesh Kumar

Sharma. It is not clear whether the injuries sustained by the victims were

grievous or simple in nature. The weapons with which the injuries were

inflicted were not sent to Forensic Science Laboratory for examination. It

is not clear till which period the injured remained admitted in the hospital.

However, it has come on record that both the victims were conscious

when the police collected their MLCs. Since the intruders residing in the

same locality were previously acquainted with the complainant and other

witnesses, they were justified to decline to participate in the TIP

proceedings and no adverse inference can be drawn against them on that

score. The crime team inspected the spot in between 06.00 A.M. to 07.00

A.M. and at that time there was no inkling of the suspects. The witnesses

made vital improvements in their depositions and were duly confronted

with. A-5 is alleged to have been apprehended at a distance of about 200

meters from the place of occurrence. However, the Investigating Officer

did not bother to associate the complainant and other eye witnesses that

time.

7. In the light of above referred discrepancies, inconsistencies,

infirmities or deficiencies touching core of the case, appellants' conviction

can't be sustained. Resultantly, the appeals are allowed setting aside the

conviction and sentence awarded to the appellants. Bail bonds and surety

bonds of the appellants stand discharged. The Trial Court record be sent

back forthwith. Pending application (if any) also stands disposed of.

(S.P.GARG) JUDGE NOVEMBER 21, 2013/tr